FEDERAL COURT OF AUSTRALIA

SZLTH v Minister for Immigration & Citizenship [2008] FCA 1309

SZLTH v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1015 OF 2008

JACOBSON J

19 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The time for filing and serving of a Notice of Appeal by the appellant be extended to 7 July 2008.

2.                  The Draft Notice of Appeal annexed to the affidavit of the applicant affirmed 4 July 2008 be treated as the Notice of Appeal in these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time in which to file a Notice of Appeal from the orders of Raphael FM dated 11 June 2008.  The application for an extension of time to file and serve the Notice of Appeal was filed on 7 July 2008. 

2                     The delay in making the application was therefore very short.  The solicitor who appears for the Minister accepts that the delay is a period of only four days.  Nonetheless, an extension of time is required under O 52, r 15(2) of the Federal Court Rules.  That rule provides that a judge may extend time for “special reasons.” 

3                     I am satisfied that the applicant has satisfactorily explained her delay.  However, the Minister’s solicitor submits that the extension should not be granted because the applicant does not have sufficient prospects of success on an appeal, having regard to the grounds stated in the proposed Notice of Appeal. 

4                     The leading authority on the question of the meaning of the term “special reasons” is Jess v Scott (1986) 12 FCR 187.  The approach which has been adopted by a Full Court in WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] informs the exercise of the power to grant an extension for special reasons. Their Honours said in that case that where the delay is short and no injustice will be occasioned to the respondent justice will usually be done if the extension of time is granted.

5                     In the present case the delay is, as I have said, very short.  The only injustice to which the Minister points is the need to resist an appeal which the Minister says has no real prospects of success.  The effect of the Notice of Appeal is that the applicant seeks to re-agitate the matters upon which she was unsuccessful before the learned Federal Magistrate. 

6                     It is sufficient for me to say that in the present circumstances, having regard to the four day delay and the absence of any other prejudice pointed to by the Minister, I ought to exercise my discretion to grant the extension of time which is sought. 

7                     Accordingly, I will order that the time for filing and serving of a Notice of Appeal be extended to 7 July 2008 and that the Draft Notice of Appeal annexed to the affidavit of the applicant be treated as the Notice of Appeal filed in this proceeding.

Associate:

Dated:         25 August 2008