Federal Court. "Where there has been inordinate delay and that consideration weighs so heavily against an extension of time being granted" in an application for judicial review, does it necessarily follow that the applicant must demonstrate "something exceptional or out of the ordinary in the circumstances of the case to provide a countervailing justification for extending time"? If so, would it be difficult to demonstrate that circumstances are exceptional if the case sought to be advanced were not "exceptional"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: "Where there has been inordinate delay and that consideration weighs so heavily against an extension of time being granted" in an application for judicial review, does it necessarily follow that the applicant must demonstrate "something exceptional or out of the ordinary in the circumstances of the case to provide a countervailing justification for extending time"?
Question 2: If the answer to Question 1 is "yes", can it be said that, although there is no strict requirement for the case to be “exceptional” in its merits, "it would be difficult to demonstrate that circumstances are sufficiently exceptional to warrant a lengthy extension of time if the case sought to be advanced were not “exceptional”"?
Question 3: Is the absence of any specific prejudice to the Minister if an extension of time were to be granted of itself sufficient to warrant extending time?
Question 4: In the context of determining an application for an extension of time within which to file a judicial review application, can it be said that "the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas" and that such an interest is relevant to that determination?
Question 5: In the context of determining an application for an extension of time within which to file a judicial review application, can it be said that, "in the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on" and that such a consequence is relevant to that determination?
Question 6: In the context of determining an application for an extension of time within which to file a judicial review application, is the question of whether the applicant would suffer any prejudice in the absence of a time extension relevant to that determination?
Question 7: Can it be said that, "in the case of relatively minor delay, the Court is most specifically concerned with whether the proposed application raises some arguable grounds of review which might be agitated if the extension of time was granted"?
Question 8: Can it be said that, "[w]here a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?
The FCA answered those questions as follows: