Salehi v Minister for Immigration and Multicultural Affairs

In the matter of Salehi v Minister for Immigration and Multicultural Affairs, the Federal Court was tasked with determining the competency of applications for judicial review of decisions made by the Refugee Review Tribunal. The primary issue before the court was whether it had jurisdiction to entertain applications that were lodged beyond the 28-day period stipulated by section 478 of the Migration Act 1958 (Cth). The applicants, Mr. Salehi, had been notified of the Tribunal’s decisions but were unable to lodge their applications within the prescribed timeframe due to delays in receiving necessary forms.

The court had to decide whether the strict time limit set by section 478(2) precluded the court from exercising its jurisdiction, even when the delay was caused by factors outside the applicants’ control. The respondent argued that the statutory timeframe was mandatory and non-extendable, relying on a series of precedents that underscored the court's lack of jurisdiction to permit late filings. These precedents held that the 28-day period was a jurisdictional requirement, beyond the court's discretion to extend.

The court examined the statutory framework and case law and concluded that the statutory language of section 478(2) was clear and unequivocal in mandating the 28-day period for lodging an application. Despite acknowledging the applicants' efforts to comply with the statutory requirements and the extenuating circumstances, the court found that it did not have the authority to allow the late filings. The court held that the statutory time limit was jurisdictional and that the applications were, therefore, incompetent due to the failure to meet the strict deadline.

Accordingly, the court dismissed the applications for judicial review. However, recognizing the applicants' diligence and the exceptional circumstances, the court granted the applicants leave to appeal and extended the time within which they could lodge their appeals.