WZAUA v Minister for Immigration and Border Protection

The case of WZAUA v Minister for Immigration and Border Protection involves the applicant, a citizen of Zimbabwe, who applied for a Protection (Class XA) visa on 27 May 2011. The delegate of the respondent Minister refused this application on 2 July 2013, and the applicant subsequently applied to the Tribunal for review of this decision on 1 August 2013. The Tribunal affirmed the delegate's decision on 16 December 2013. The applicant then applied to the Federal Circuit Court for an extension of time to seek judicial review, as the application was filed 68 days late, beyond the 35-day period stipulated in the Migration Act. The primary legal issues the Court was required to decide included whether the Federal Circuit Court denied the applicant procedural fairness by not responding to a post-hearing development by giving the applicant an opportunity to make submissions, and whether the Federal Circuit Court wrongly applied a higher threshold to the merits of the proposed grounds of review beyond a reasonably impressionistic analysis.

The Court determined that the Federal Circuit Court did not deny the applicant procedural fairness as the applicant, with the benefit of legal representation, could not complain that she was denied an opportunity that she did not seek or that no account was taken of an argument that she did not raise. Additionally, the Court found that the facts disclosed to the primary judge were not sufficient to show that the applicant might well have available to her a judicial review ground with some prospects of success, based on the decision in MZAFZ. Therefore, fairness required that the applicant should be given an opportunity to make submissions about that ground. The Court also concluded that the Federal Circuit Court did not wrongly apply a higher threshold to the merits of the proposed grounds of review beyond a reasonably impressionistic analysis. The Court found that the Federal Circuit Court applied the correct test in determining what constituted jurisdictional error and that the Court did not wrongly find that the Minister would suffer prejudice if an extension of time was granted.

The final orders of the Court were that the application be dismissed, and unless a party notified the Court in writing by 4.00 pm on Thursday, 25 October 2018, indicating opposition to this order as to costs, the applicant would pay the first respondent’s costs of the application, as agreed or assessed.