FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZACU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 486 |
| Catchwords: MIGRATION – Judicial review – extension of time to apply – tests – whether reasonable and adequate explanation for delay – whether grounds in substantive are sufficiently arguable – whether risk in the foreseeable future considered – whether decision unreasonable, irrational or illogical – extension of time granted – application dismissed. |
| Legislation: Acts Interpretation Act 1901, s.36(2). Migration Act 1958 (Cth), ss.476, 477. |
| Applicant: | MZACU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 640 of 2014 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 5 November 2014 |
| Date of Last Submission: | 5 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 12 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nguyen |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr Aleksov |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for lodging the application for judicial review is extended to
7 April 2014.
The application for judicial review filed 7 April 2014 and amended application filed 24 October 2014 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 640 of 2014
| MZACU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 28 February 2014. That decision affirmed the decision of a delegate to the Minister for Immigration and Border Protection not to grant the applicant a Protection (Class XA) visa.
The applicant filed an application on 7 April 2014 and an amended application on 24 October 2014. The amended application sought a show cause hearing. By orders…
Keep reading for free
Create a free CaseChat account to read MZACU v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2015] FCCA 486
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether it should exercise its discretion under section 477(2) of the Act to extend the time for the applicant to file their application. This required the Court to consider whether the applicant had satisfied the statutory preconditions for an extension, namely that a written application specifying why an extension was necessary in the interests of the administration of justice had been made, and that the Court was satisfied that such an extension was indeed necessary in the interests of the administration of justice.
In determining whether to grant the extension, the Court applied the principles established in *SZRIQ v Federal Magistrates Court of Australia* [2013] FCA 1284. These principles require consideration of factors such as whether there was a reasonable explanation for the delay, any prejudice to the Minister, and whether the applicant's substantive case for judicial review was sufficiently arguable to justify the extension. The Court noted that the applicant's application, filed on 26 September 2014, constituted a written application specifying the reasons for the requested extension. The Court also observed that the fact the application was only one day late did not automatically warrant an extension without satisfying these established guidelines.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Section 477 of the Act provides as follows:(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. (3)In this section: “date of the migration decision” means: (a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or (c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or (d)in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate. (4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3). (5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. The fact that the application was only one day late does not mean that an extension should be granted without the applicant being required to satisfy the guidelines that have been developed and are set out in SZRIQ (post). The application for an extension of time was made in the original application, in which the applicant states why he considers that it is necessary in the interests of the administration of justice that the Court make an order extending time. The amended application filed 26 September 2014 contains an application in writing and states why the applicant considers that it is necessary in the administration of justice to extend time. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, Judge Foster considered the requirements for an extension of time under s.477 of the Act, and stated at [47]:(47)The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;(b)Whether there is any prejudice to the Minister;(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.