Australian Immigration Daily News

How long can you sit on your rights?

No, for all the “wise persons” who are reading this, the answer to that question is not: “It depends on how comfortable the chair is”!

There is actually a serious, consequential issue here, one that is important to consider for anyone who has not been successful in the Administrative Appeals Tribunal or who is advising someone who has lost her/his case in the Tribunal and is considering whether to take the case to the Federal Circuit Court for judicial review.

As is well known, section 477 of the Migration Act provides that an application for judicial review to the Federal Circuit Court must be made within 35 days of the date of the Tribunal’s decision, but an extension of that period may be granted when the Court is satisfied that it is necessary in the interests of justice.

It is not at all unusual, for a variety of reasons, for clients to “miss” the deadline, including lack of familiarity with the Australian legal system, lack of funds, uncertainty as to what is involved in pursuing a judicial review application or how long it will take or how much it will cost, lack of familiarity with what kinds of issues can properly be raised through a judicial review application , uncertainty concerning the prospects for success and worry about suffering an adverse costs order in favour of the Minister, among  others.

So, what factors determine when it is possible to get an extension of time?

That issue was carefully reviewed in a case that was decided by Judge Lucev in a decision that was handed down earlier this week, Singh v Minister for Immigration & Anor (2017) FCCA 275 (20 February 2017).

This case involved an application for judicial review that was filed a long time after the deadline, in fact 470 days too late.

In Singh, the FCC outlined the factors that are considered when an application for an extension of time is made:

1. The length of the delay;

2. The explanation for the delay;

3. The prejudice to the Minister occasioned by the delay; and

4. The merits of the proposed appeal.

In Singh, the FCC referred to the High Court’s decision in the case of Re Commonwealth; Ex parte Marks  where it was held that when a significant period of time has elapsed, the statutory time period for filing a judicial review application should be “rigidly applied”, and an extension of time should be refused, “in all but very extraordinary circumstances”.

When there is a really long delay, such as occurred in the Singh case,  it is exceptionally difficult to get an extension: in  the High Court’s decision in Marks, it was stated that where the delay is lengthy, it is essentially necessary to show that the delay was caused by some conduct of the respondent or of  a public  body or official.

It has also been held that the longer the period of the delay, the “more persuasive the explanation needs to be” for the delay (Jess v Scott).

What if the client was simply not aware that the appeal period is limited to 35 days?

This is likely going to be a very difficult argument to make, as it appears that it is the routine practice of the AAT to give applicants written notice of the time within which a judicial review application must be made.

In any event, there is a long line of authority that holds that ignorance of the time limit, without further explanation, is not a reason for granting an extension of time.

What if the client has been pursing Ministerial Intervention after losing in the AAT?

That, after all, is a very common course, as asking for Ministerial Intervention is a lot cheaper than a judicial review application and does not involve the risk of having to pay the Minister’s costs if the application is not successful.

Unfortunately, that won’t get you very far!

There are a lot of cases which say that making a request for Ministerial Intervention and waiting for the outcome of that request is not a valid reason for delaying the filing of an application for judicial review.

The explanation for that is that a request for Ministerial Intervention is seen as a course of action that is inconsistent with challenging a decision of the Tribunal in court, and is regarded as one which accepts the Tribunal’s decision.

What if there would be prejudice of any kind to the Minister if any extension of the filing deadline is granted?

That won’t help by itself either: It was held in the case of Hunter Developments Pty Ltd v Cohen that the lack of prejudice to a respondent, such as the Minister, “can never of itself” justify the grant of an extension.

OK, in light of these other obstacles, do you need to show that you will definitely win the case in order to get an extension?

No, it is not necessary to show that the case will certainly succeed.

All you need to do is show that the grounds on which review is sought are “arguable, reasonably arguable, or have a reasonable prospect of success”. 

And of course, your case must be premised on a claim of jurisdictional error; you’ll definitely get bounced out of court if you’re simply trying to get the court to re-consider the merits of the case.

So in the classic formulation, you must be able to show that the AAT: identified a wrong issue, asked itself the wrong question; ignored relevant material; or relied on irrelevant material, or otherwise committed jurisdictional error.

Of course, the best approach, even if it calls for burning midnight oil, is to get the case filed within the deadline.

Then you don’t have to worry about trying to persuade the Court to grant an extension!

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