Judicial Review Time Limits can be Extended
In a big reform the Federal Courts will have power to extend time to bring a judicial review application against all migration law decisions.
A new time limit applies for judicial review being “35 days of the date of the migration decision” replacing the previous provision which required an application to be brought within “28 days of the actual (as opposed to deemed) notification of the decision” [s. 477(1)].
It is important to set out a key definition in s. 477(3):
date of the migration decision means:(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under s. 368(1) or 430(1); or(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or(d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
The Courts now get the power to extend time as set out in the new s. 477(2):
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:(a) an application for that order has been made in writing to the Federal Magistrates 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 Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
There is now a similar provision for the Federal Court [s. 477A(2)]
The end result of all the above is that the 35 day rule is probably in practical terms the same as the old 28 day rule given that the time now runs from the date of the decision. But now the Courts have general power to extend time beyond 35 days. But the extension of time is discretionary and of course primarily all attempts should be made to meet the time limit.
All of the above is implemented via the Migration Legislation Amendment Act (No 1) 2009 coming into effect on 15.3.09.
The same power is also given to the High Court. In 2007 the High Court had ruled that the previously unextendable time limits on bringing judicial review proceedings directly to the High Court were unconstitutional. InBodruddaza v MIMA [2007] HCA 14 (18.4.07), (2007) 234 ALR 114; 81 ALJR 905, the applicant missed the time limit on appeal to the Migration Review Tribunal by one day. Under s. 75 of the Australian Constitution, the High Court always retains power to hear and determine applications against Commonwealth officers, for judicial review by way of the prerogative writs in its original jurisdiction without having to first bring proceedings in the Federal Magistrates Court first. In other words under the Constitution a person could go directly to the High Court by-passing the lower courts.
So now there is common time limit on the Federal Courts and the High Court with unlimited discretion to extend time.
The writer’s opinion is that the ability to extend time applies to decisions made before the changes came in to force. So if there were cases in the past where a person missed the judicial review time limits, application could now be made to extend the time.
None of the changes change the jurisdiction of the Federal Courts which is limited to appeals from decisions of merit review tribunals and decision where no merit review is available (see s. 476). Thus if a person misses a merit review deadline (from which there is no ability to get an extension of time), then the only judicial review remedy is to go directly to the High Court.