SZOXP v Minister for Immigration and Border Protection [2015] FCA 183

SZOXP v Minister for Immigration and Border Protection [2015] FCA 183

Although the delay in seeking to appeal was substantial and the explanation imperfect, the applicant gave a genuine and detailed explanation, the Minister identified no particular prejudice, and the proposed appeal raised an arguable, novel and important question of construction of s 5CB(2)(c)(ii). The text of the provision does not expressly require prior cohabitation, and there was no authority directly on point, so the justice of the case warranted granting an extension of time and listing the appeal before a Full Court.

Jurisdiction
Australia
Judgment Date
06 March 2015
Procedural Posture
Migration Application for Extension of Time to Appeal From Orders of the Federal Circuit Court / Application for Extension of Time Granted; Appeal to Be Listed Before a Full Court
Outcome
Application granted.
Legal Topics
['extension of Time to Appeal' 'partner Visa' 'de Facto Relationship' 'construction of S 5 Cb(2)(c)(ii) of the Migration Act 1958 (cth)' 'jurisdictional Error']
['migration Law' 'administrative Law' 'appellate Procedure'] ['extension of Time to Appeal' 'partner Visa' 'de Facto Relationship' 'construction of S 5 Cb(2)(c)(ii) of the Migration Act 1958 (cth)' 'jurisdictional Error']

Case Brief

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Procedural Posture

Migration Application for Extension of Time to Appeal From Orders of the Federal Circuit Court / Application for Extension of Time Granted; Appeal to Be Listed Before a Full Court

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to file a notice of appeal from the Federal Circuit Court judgment.' 'Whether there was an acceptable explanation for the delay and any prejudice to the Minister.' 'Whether the proposed appeal had sufficient merit, including whether s 5CB(2)(c)(ii) of the Migration Act 1958 (Cth) requires de facto partners to have previously lived together before they can be said not to live separately and apart on a permanent basis.']

Ratio Decidendi

Although the delay in seeking to appeal was substantial and the explanation imperfect, the applicant gave a genuine and detailed explanation, the Minister identified no particular prejudice, and the proposed appeal raised an arguable, novel and important question of construction of s 5CB(2)(c)(ii). The text of the provision does not expressly require prior cohabitation, and there was no authority directly on point, so the justice of the case warranted granting an extension of time and listing the appeal before a Full Court.

Court Disposition

Application granted.

Orders

  • ['The applicant be granted an extension of time to file a notice of appeal in terms of the draft notice of appeal.' 'The appeal be listed for hearing before a Full Court of this Court in the appeals period commencing on 4 May 2015 or as soon as possible thereafter.' 'The costs of the application be costs in the...