Case: SZJDS v Minister for Immigration &amp; Citizenship [2008] FCA 1093
Outcome: applied
When exercising the discretion, the Court is required to consider whether an applicant has demonstrated that his appeal may have sufficient prospects of success to make it just that he should be allowed to proceed. When considering prospects of success, at least two considerations have to be addressed, namely: what is the standard against which prospects are to be judged, and how is that assessment to be made. In SZJDS v Minister for Immigration &amp; Citizenship [2008] FCA 1093 , Reeves J helpfully reviewed the authorities and set out his conclusion as follows: [21] ... there are a number of decisions of this Court, including the Full Court, that require me to consider the applicant's prospects of successfully prosecuting his appeal, before exercising my discretion to grant leave to file the appeal out of time... [22] The questions which then arise are: how rigorous should that assessment be; what standard should apply to it; and how closely should the applicant's prospects of success be examined? The appropriate standard has been expressed in different ways and in different circumstances. In Jess the Full Court does not seem to have mentioned any requirement to assess the applicant's prospects of success in the appeal. This is probably explained by the view the Court expressed early in its reasons that: "there is no suggestion that the appeal is sought to be maintained mala fide or upon slight or foolish grounds" (at p 3). However, their Honours did emphasise the need for flexibility to accommodate the range of situations that may arise when they said: ... the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. His Honour then set forth the authorities, including Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 , and continued: [30] Taking all these decisions into account, particularly the High Court Decision of Jackamarra, I consider the standard that should be applied in an application of this kind to the assessment of the applicant's prospects of success in the appeal, is similar to that to be applied in an application for summary dismissal. That is, unless the appeal is shown to have no reasonable prospects in the sense that it is devoid of merits or will clearly fail, or is hopeless or unarguable, leave should be granted. [31] There remains the question: how closely should the applicant's prospects of success on the appeal be examined? The answer to that question was provided in Jackamarra. There the High Court said the consideration of an application of this kind should not go into much detail on the merits and can only assess the merits in a fairly rough and ready way: see [9] per Brennan CJ and McHugh J and [66.4] per Kirby J. This is the approach pursued in the present Application .