FEDERAL COURT OF AUSTRALIA

SZLBO v Minister for Immigration & Citizenship [2008] FCA 1595

SZLBO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1470 of 2008

EDMONDS J

15 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an extension of time be refused.

2.                  The applicant pay the first respondent’s cost fixed in the sum of $1,400.

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

Introduction

1                                             This is an application for an order pursuant to Order 52, rule 15(2) of the Federal Court Rules (‘the Rules’) for a grant of leave to file and serve a notice of appeal that is now out of time by more than 200 days.  The grant of such leave is predicated on the existence of special reasons; whether or not they are established will always be a question of fact and degree in each case.  The applicant appeared in person before me this morning and explained some of the difficulties he experienced from the time of his application for a protection visa had been before the second respondent (‘the Tribunal’) until the present time.  In my view, none of those circumstances establishes special reasons. 

2                                             The hearing in the Federal Magistrates Court was heard on 31 January 2008.  His Honour delivered extempore judgment and written reasons dated 22 February 2008.  The applicant was detained in the Perth Immigration Detention Centre on 7 May 2008, but that date was after the period that the applicant could file a notice of appeal in this Court without leave.  The applicant was transferred to the Villawood Immigration Detention Centre on 25 July 2008 and was released from detention on 1 October 2008.  Nothing has been put before the Court this morning that explains how his detention between 7 May and 1 October of this year impeded his ability to file an application for leave before now. 

3                                             More importantly, nothing has been put before the Court to explain why, before he was placed in detention in Perth on 7 May 2008, he could not have filed and served, on a timely basis, a notice of appeal from his Honour’s decision below.  Accordingly, I find that no special circumstances are established upon which I can make an order pursuant to O 52, r 15(2) of the Rules.  Apart from that consideration, I am strongly of the view that the applicant’s draft notice of appeal does not contain any ground of appeal which has any prospect of success, let alone sufficient prospect of success to warrant the exercise of my discretion to grant leave. 

4                                             The application is, therefore, refused with costs.

Associate:

Dated:         24 October 2008