SZLIX v Minister for Immigration and Citizenship [2008] FCA 1892

SZLIX v Minister for Immigration and Citizenship [2008] FCA 1892

The application for an extension of time was dismissed because the applicant did not establish special reasons for filing and serving a notice of appeal out of time, and the proposed appeal had no prospects of success given that there had been no substantive alteration to the evidentiary position after the Full Court had held that the evidence was insufficient to prove the alleged fraud. The applicant's ministerial intervention request and correspondence about withdrawing a bridging visa application did not constitute special reasons, and there was no substantial argument against the federal magistrate's rejection of Mr Wang's affidavit when Mr Wang was unavailable for cross-examination.

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Application for an Extension of Time to File and Serve an Application for Leave to Appeal / Federal Court of Australia, New South Wales District Registry, Before Perram J
Outcome
Application dismissed; applicant ordered to pay the first respondent's costs.
Legal Topics
['extension of Time to Appeal' 'leave to Appeal' 'prerogative Writs' 'refugee Review Tribunal' 'fraud Allegation Against Migration Agent' 'admissibility of Affidavit Evidence' 'special Reasons Under Federal Court Rules O 52 R 15(2)']
['migration Law' 'administrative Law' 'federal Civil Procedure'] ['extension of Time to Appeal' 'leave to Appeal' 'prerogative Writs' 'refugee Review Tribunal' 'fraud Allegation Against Migration Agent' 'admissibility of Affidavit Evidence' 'special Reasons Under Federal Court Rules O 52 R 15(2)']

Case Brief

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Procedural Posture

Application for an Extension of Time to File and Serve an Application for Leave to Appeal / Federal Court of Australia, New South Wales District Registry, Before Perram J

Legal Issues

  1. 1 ['Whether special reasons existed under Order 52 rule 15(2) of the Federal Court Rules to allow filing and service of a notice of appeal out of time.' "Whether the proposed appeal had sufficient prospects of success, including in relation to rejection of Mr Wang's affidavit and the fraud allegation." 'Whether pursuing an ongoing ministerial intervention request explained or justified the delay.']

Ratio Decidendi

The application for an extension of time was dismissed because the applicant did not establish special reasons for filing and serving a notice of appeal out of time, and the proposed appeal had no prospects of success given that there had been no substantive alteration to the evidentiary position after the Full Court had held that the evidence was insufficient to prove the alleged fraud. The applicant's ministerial intervention request and correspondence about withdrawing a bridging visa application did not constitute special reasons, and there was no substantial argument against the federal magistrate's rejection of Mr Wang's affidavit when Mr Wang was unavailable for cross-examination.

Court Disposition

Application dismissed; applicant ordered to pay the first respondent's costs.

Orders

  • ['The application be dismissed.' 'The applicant pay the costs of the first respondent.']