Case: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 , 85 ALD 532
Outcome: cited
the exercise of this discretion, some Judges have embraced the proposition that "... in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker ": R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356 at 357 per Lord Woolf MR. These observations have been applied by Finkelstein J in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [5] , [2005] FCA 195 ; 85 ALD 532 at 535. And in some circumstances, the Full Court has observed that in refugee cases leave to appeal out of time will " ordinarily " be granted: N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, 68 ALD 21. Lee, Moore and Madgwick JJ there observed: [12] In the present case although the delay involved is a period of two months, it is to be borne in mind that leave is sought by a person: who is an applicant for refugee status; who does not understand English; who is not familiar with the legal system of this country; and, who, at all material times, has been interned in a detention centre without legal representation. It may be concluded, therefore that in those circumstances "special reasons" have been demonstrated and given that the Minister will not be prejudiced if leave is granted, leave to appeal out of time, ordinarily, would be granted. Reservation may be expressed as to whether refugee cases fall into any special or separate category of case or whether the gravity or consequences of refusing an extension of time must be taken into account in all cases. In those cases where applicants are bona fide seeking asylum, it may well be that the gravity of the circumstances they confront may be a very real reason for granting the extension sought. The observations of the Full Court, it is considered, should not be understood as denying the discretion conferred by O 52 r 15(2) or indicating that any particular exercise of discretion should proceed otherwise than upon the basis of all of the relevant facts presented in any individual application. Those observations of the Full Court must also be understood to have been made in the context where there was an explanation for the entirety of the period for which the extension was there sought and where that extension was for a period far shorter than in the present proceeding. Relevant to the ultimate conclusion reached by the Federal Magistrate was the conclusion that the Refugee Review Tribunal had committed a jurisdictional error. Even if the discretion were to be exercised afresh by this Court, that conclusion would remain equally relevant. It is proper when exercising the discretion to have regard to the merits of the substantive application sought to be advanced: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [14] , [2005] FCA 195 ; 85 ALD 532 at 538 per Finkelstein J.