Federal Court. In determining whether a time extension to file a judicial review application should be granted, can it be said that "the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant"?
On 10 November 2023, the Minister cancelled the applicant's visa (cancellation decision) under s 501(3) of the Migration Act 1958 (Cth).
On 15 November 2023, the applicant received Notice of the cancellation decision.
On 16 November 2023 and 9 January 2024, the applicant made representations under s 501C of the Act, seeking revocation of the cancellation decision.
On 19 July 2024, the Minister made a decision not to revoke the decision to cancel the applicant's visa (non-revocation decision).
On 14 August 2024, the applicant applied to the Federal Court (FCA) for an extension of time within which to apply for judicial review of the cancellation decision.
Some of the questions to the FCA were as follows:
Question 1: In determining whether a time extension should be granted, can it be said that "the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant"?
Question 2: Can it be said that "an applicant's lack of knowledge of legal rights or an absence of legal advice about the course of decision-making may not of itself provide an adequate excuse for delay"?
Question 3: Should the Court "infer from the Notice and the subsequent events that the terms of the Notice led or at least encouraged the applicant to proceed in a particular manner", in that he "omitted to do what the Notice omitted to mention he could do – that is, he omitted to bring a review application to this Court within time", with the result that the delay has been appropriately explained?
Question 4: Was it rational for the Minister "to place any weight on a comment of a third party, referred to by the sentencing judge and rejected as being without foundation"?
Question 5: In assessing whether any error was material, can it be said that, "even allowing for the fact that the Minister concluded that the applicant's risk of reoffending was low, that term is not to be understood as being the lowest possible assessment of the quality of risk", in that "the term 'low' permits a range of potential outcomes"?
Question 6: Does HZCP stand as authority for the proposition that the Minister was bound by the findings of the sentencing judge relating to the likelihood of re-offending?
The FCA answered those questions as follows: