WZAVO as litigation guardian for WZAVP v Minister for Immigration

In WZAVO as litigation guardian for WZAVP v Minister for Immigration, the Federal Court of Australia considered an application for an extension of time in which to file a substantive application for judicial review. The applicant, WZAVP, sought to challenge a decision of the delegate of the Minister for Immigration to refuse to grant a Medical Treatment (Visitor) visa under s.65 of the Migration Act 1958. The application for judicial review was filed 189 days outside the statutory time limit of 35 days. The Court was required to decide whether it was in the interests of the administration of justice to grant an extension of time within which to file the substantive application.

The Court considered the relevant statutory provision, s 477(2) of the Act, which sets out the circumstances in which the Court may extend the time in which to file the substantive application. The Court noted that the applicant had made an application for an extension of time in writing and provided grounds for why an extension should be granted, satisfying s 477(2)(a) of the Act. The Court then considered whether it was in the interests of the administration of justice to grant an extension of time, pursuant to s 477(2)(b) of the Act. The Court noted that the most common factors considered in this regard include the length of delay and prejudice, whether the explanation for the delay is adequate, and whether the proposed substantive application for judicial review has merit. The Court ultimately determined that it was not in the interests of the administration of justice to grant an extension of time.

The Court found that the delay in filing the application for judicial review was significant, being more than five times the specified statutory limitation period. The Court also found that the explanation for the delay was not adequate, as the applicant had not provided any satisfactory reason for the delay. In relation to the merit of the substantive application, the Court noted that the Tribunal had found that it had no jurisdiction to review the decision, as the application for review was not made within the prescribed period. The Court held that, in these circumstances, the substantive application for judicial review was unlikely to have merit.

The Court denied the applicant's request for an extension of time within which to file his substantive application for judicial review. The Court held that it was not in the interests of the administration of justice to grant an extension of time, given the significant delay, inadequate explanation for the delay, and the lack of merit in the substantive application. The Court did not make any orders in relation to the substantive application for judicial review, as it found that it had no jurisdiction to review the decision.