Migration Visas Federal Court of Australia Kean Legal Barristers and Solicitors Migration Law

Migration Law Blogs Series (MLBS) 5-Migration visas- Extending time for the filing of a Federal Circuit Court application – Part 1

By Mr Anthony J Aristei

If you have a migration issue and you are not sure what stage it is at or if it should be taken to the Court or Tribunal please contact our office for legal advice. It is best to seek this advice early, than to wait until it may be too late.  

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor form Kean Legal Barristers & Solicitors is ready to help.

Right to review

If the Migration department refuses your Visa application, you have the right to seek a review. The review is ordinarily commenced by lodging an application with the Administrative Appeals Tribunal (‘AAT’) in your State or Territory.

Even if the Administrative Appeals Tribunal refuses to allow the visa application, you may still seek a further review from the Federal Circuit Court. (That right is specifically authorised by section 476 of the Migration Act 1958 (Cth) (‘Migration Act’)).

The latter type of review is known as a ‘ judicial review’. It is commenced by the completion and filing of Application – Migration Act Form. That document must identify the particular grounds of judicial review which are relied upon.

In separate blogs, we have detailed the various matters which relate to the preparation of a judicial review application form.

Once the document has been duly completed, it must be filed at the Court registry, along with a supporting affidavit. (The filing fee must also be paid before the document can be accepted by the Registry).

The importance of these Court documents cannot be overstated.  If possible, they should be prepared with the professional assistance of an experienced migration adviser (preferably one with legal experience).

In numerous blogs, we have also talked about the importance of filing a judicial review application at the Federal Circuit Court registry within the prescribed time-limit.

Extending the time limit

If the application has not been filed within 35 days of the date of effective refusal of the visa by the migration review tribunal (generally the Administrative Appeals Tribunal), the application is classified as ‘non-complying’.

If these circumstances have occurred, it is NOT too late to apply to the Federal Circuit Court for an extension of time. (The right to apply for an extension is authorised by section 477(2) of the Migration Act).

However, the situation is not unlike ‘handing in an assignment late’ to your school teacher.  Ask yourself the same question that a teacher would ask you – 

If the other students have handed their assignments in on time, why should you be given special permission to hand it in after the deadline?

If you do have reasons for the delay in lodging the Court documents after the 35-day time-limit, then you should see urgent advice and assistance.

Your adviser can then take urgent steps in order to file an application for an extension of time on your behalf.

How to make Migration Visas application for extending the time limit

Ideally, your adviser should lodge the application for an Extension of time along with the Judicial review application itself.  Both applications can then be heard by the Federal Circuit Court (either separately or jointly).

As with school assignments, however, the later you leave it the harder it will be to obtain special permission!

And just like the situation with school assignments, if you want an extension of time, you must do at least 2 things in order:

  1. You have to specifically ask for permission; and
  1. You must specify reasons why the Court should make an order extending time ( ie so that your judicial review application can be ‘assessed’).

If you do not complete these 2 steps (in the specific form, manner, and wording required by the Court’s particular laws and procedures), then your application will be considered as ‘incompetent’.

In other words, it will be treated as if you’d never even asked your teacher for special permission in the 1st place! (See, for example, WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 and SZRBN v MIMA [2012] FCA 984).

On the other hand, if a valid written application for an extension of time has been filed with the Court, it must seriously consider whether or not to grant such an order.

The statutory test or formula (to guide the Court’s decision) is whether it appears – ‘necessary in the interests of the administration of Justice’ to make the order extending time (in the particular case)?

The Migration Act itself does not provide any more specific information on how to apply that test to each case.

However, the judgments in this area of law have referred to a number of different factors which are important in determining the test.

Some of the more important factors are-

  1. The actual period of the delay;
  1. The specific reasons for the delay;
  1. Whether your judicial review application appears to have real prospects of success (if time were extended to allow that application to be heard); and
  1. Will the Migration department be at an unfair disadvantage if the time is extended (enabling the judicial review application to be heard by the Court).

Your answers to these questions (and other relevant factors and documents) need to be detailed in a sworn affidavit. That affidavit must also be filed in support of your application for an extension of time.

If you need urgent assistance, feel free to contact our 24/7 office number if you need any legal advice or help in preparing this application. Call our office on +61 8 6323 8697

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