Australian Immigration Daily News

If, like me, you are constantly checking the Austlii Website to see what the latest and greatest pronouncement on migration law from the Federal Courts is (ok readers, don’t all put up your hands at once and say “Oh yeah, I check Austlii at least 4 times a day”!!) then you will have noticed that one of the issues that is decided most frequently is whether to grant an extension of time to allow a late application for judicial review of a decision by the Administrative Appeals Tribunal to proceed.  

The issue seems to come up dozens of times a year.  And for those of us who are either “old enough to remember” (I’m definitely not!) or who are inclined towards the music of the ‘60s and early ‘70s, the issue brings to mind the lyrics of the famous Carole King song “It’s Too Late” from the album “Tapestry”: 

“And it's too late, baby now, it's too late,
Though we really did try to make it.”

Cases that address this issue that have appeared on Austlii just in the last week include the Federal Circuit Court’s decision in McKinney v Minister for Immigration & Anor (2015) FCCA 2337 and the judgment of the Federal Court of Australia in Zheng v Minister for Immigration and Border Protection (2015) FCA 989 (9 September 2015). A third case, from the Federal Circuit Court, Sandan v Minister for Immigration & Anor (2015) FCCA 1166 (19 May 2015) seems to have the most detailed recent analysis of the issue. 

So, leaving Carole King out of the discussion for the moment, what does it really take to “make it” when you’re “too late” – in other words, what is legally required to get an application for judicial review before the Federal Circuit Court when, for whatever reason, you’ve missed the 35 day deadline after the AAT has made a decision that is established by section 477(1) of the Act? A review of the Sandan case gives us the answers! 

Really, there are three hurdles to overcome, or, as lawyers (at least Australian lawyers!) love to say, three “prongs” that need to be met. 

First, the application must be “competent” under subsections 477(2)(a) and 477(2)(b) of the Act. 

Section 477(2) provides as follows:

“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.”

So, in order to meet 477(2), when the application for judicial review is made after the 35 day statutory time period and an extension of time is sought,  a written application must be filed with the Federal Circuit Court which states why it is in the interests of justice for an extension of time to be given and, additionally, the Court must be satisfied that granting the extension would be in the interests of justice.

As was noted by Judge Lucev in the case of WZASQ v Minister for Immigration & Anor, (2013) FCCA 1726, if section 477(2)(a) is not met by the filing of a written application for an extension of time which explains why it would be in the interests of justice to grant the extension, then the Court simply has no power to grant an extension. This is the case even if the Court, “on its own motion”, wishes to grant the extension or even if an extension of time is consented to by the Department/Minister. Unfortunately, it’s a very simple equation: no written application for an extension = no extension. Full stop! End of story!

OK, so what do you have to do to “tick the box” and make sure an application is “competent” under section 477(2)? Simple! Just “tick the box”!! The form for filing an application for review of a migration decision to the Federal Circuit Court (at this link: "Application Under Migration Act") literally has a “box” you can “tick” to indicate that you are seeking an extension of time!  Of course, in order to make the application “competent”, you must also fill out the part of the form that requires that the grounds upon which the extension of time is being sought, and say why it would be in the interests of justice for the extension to be granted.

So, easy enough! The  next requirement is that an affidavit must be prepared and filed with the Court that meets the requirements of rule 44.05(2)(c) of the Federal Circuit Court Rules. This affidavit must include a copy of the AAT decision that is being challenged. Even more importantly, the affidavit must include evidence explaining the delay and showing why it is in the interests of the administration of justice for the Court to grant an extension.  As explained in Sandan, the reason for this requirement is “to provide the factual foundation upon which the Court can judicially determine whether or not to make an order granting an extension of time”.

Is it mandatory to file such an affidavit? In the phrase that was made famous, or infamous, by the notorious US vice-presidential candidate, Sarah Palin, “You betcha!!!”. A failure to file the affidavit required under rule 44.05(2)(c) can result in your application for an extension of time being thrown out of court!  There can be exceptions (thankfully): under rule 1.06(1) of the Federal Circuit Court Rules, the requirement for the affidavit can be dispensed with when the interest of justice so require. 

Four examples of situations where the affidavit may not be required are provided in Sandan:

1.  In cases where the relevant facts concerning the application for an extension of time are the subject of an agreed statement of facts;

2. If the relevant facts concerning the application for an extension of time are the subject of “other agreements or concessions made at hearing”.

3. In circumstances where the applicant is given leave to “adduce” (provide) oral evidence in relation to factual material relevant to the application for an extension of time; and

4. If the alleged jurisdictional error is established or is extremely likely to be proven successfully and it is thus not necessary for the Court to deal with the factual issues normally associated with an application for an extension of time.

Whew! So far, so good!! So, after meeting section 477(2) and providing the affidavit required by rule 44/05(2)(c), what is the last hurdle that must be overcome to persuade the Court to grant an extension of time?  Well,  as identified in Sandan, the considerations that a court might take into account in deciding whether to grant an extension of time run the gamut from at least a to g (although a – g are not an exhaustive list, so perhaps other factors going from g all the way through to z might come into play!). The factors listed in Sandan include:

1. the extent of the delay;
2. the reasons for the delay;
3. any prejudice to the Department/Minister;
4. the impact on the applicant if an extension of time is refused;
5. the interests of the public at large;
6. any exercise of the Court’s discretion; and, last but not least
7. the merits of the proposed judicial review application.

Thus, in weighing whether or not to grant an extension of time, the Court will consider whether the application for judicial review establishes that the AAT has committed jurisdictional error.  If the application for an extension of time does not persuasively state why the AAT was guilty of jurisdictional error, the whole case is likely to be bounced straight out of court.

So there you have it!!! The steps for getting an extension of time are “1-2-3”! Or are they really?

Wouldn’t it be so much easier, whenever possible, to get the application for judicial review filed within the 35 day statutory time limit, and not have to worry about jumping through all these hoops???

You betcha!!!!!!!!!!!

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837