Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The plaintiff, Tu'uta Katoa, a New Zealand citizen, sought judicial review of the Minister for Home Affairs' decision to cancel his Subclass 444 Special Category (Temporary) visa under s 501(3)(b) of the *Migration Act 1958* (Cth). The plaintiff applied for an extension of time to file his application for review, as his application was filed 25 days after the prescribed deadline. The primary judge heard the application for an extension of time concurrently with the substantive application for review and ultimately refused the extension, finding that the proposed ground of review lacked merit. The plaintiff appealed this decision to the Full Court of the Federal Court of Australia.

The Full Court was required to determine whether the primary judge had misapprehended or misconceived the nature of the statutory power conferred by s 477A(2) of the *Migration Act* in refusing the extension of time. Specifically, the court considered whether the exercise of discretion under s 477A(2) could involve an assessment of the merits of the proposed grounds of review, and whether the primary judge had committed jurisdictional error by refusing the extension on the basis that the proposed ground lacked merit.

The Full Court held that the primary judge had not erred in his consideration of the plaintiff's proposed ground of review. His Honour was permitted to assess the merits of the proposed ground to determine whether an extension of time was necessary in the interests of the administration of justice. The court found no indication in the primary judge's reasons that he had misapprehended the nature of the discretion or that he would only grant an extension if the proposed ground was certain to succeed. As the primary judge was not satisfied that the proposed ground had any merit, it was open to him to conclude that it was not necessary in the interests of the administration of justice to grant an extension of time.

The plaintiff's amended application for judicial review was dismissed with costs.