Minister for Immigration and Citizenship v SZIPL

[2009] FCA 143

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZIPL [2009] FCA 143

SZIPL v Minister for Immigration [2008] FMCA 1501, reversed

MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZIPL AND ANOR

NSD 1969 of 2008

FLICK J
20 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1969 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

SZIPL
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	20 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Appeal be allowed.

2.The matter be remitted to the Federal Magistrates Court of Australia for reconsideration in accordance with law.

3.There be no Order as to costs.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1969 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

SZIPL
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FLICK J
DATE:	20 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)

1. This is an appeal from a decision of the Federal Magistrates Court of Australia dated 28 November 2008: SZIPL v Minister for Immigration and Citizenship [2008] FMCA 1501.

2. The Federal Magistrate allowed an application seeking review of the Refugee Review Tribunal’s decision. In issue before the Tribunal was the nationality of the claimant, whether she was Iraqi or Syrian. The findings of fact made by the Tribunal were accepted by the Federal Magistrate as being findings open to be made by the Tribunal. The basis upon which the application was successful, however, was that there had been no “consideration by the Tribunal of whether the applicant was an Iraqi national as well as a Syrian national”: [2008] FMCA 1501 at [35].

3. In respect of this decision, both parties concede that no opportunity was extended to either party to make submissions on:

   i)the law relevant to a claim for dual nationality; or

   ii)what further facts should have been found by the Tribunal or what inferences should now be made based upon those findings as were made by the Tribunal, if such a case as to dual nationality were to be advanced.

   It was far from clear that a claim as to dual nationality had ever been advanced by the claimant.

4. In these circumstances it is considered that both parties have been denied procedural fairness by the Federal Magistrate. This Court, as an appellate court, is considerably assisted by the reasons given by Federal Magistrates and in this case this Court should not be denied that benefit.

   ORDERS

5. The Orders of the Court are:

   1.The Appeal be allowed.

   2.The matter be remitted to the Federal Magistrates Court of Australia for reconsideration in accordance with law.

   3.There be no Order as to costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:        25 February 2009

Counsel for the Appellant:	Mr G R Kennett
Solicitor for the Appellant:	DLA Phillips Fox
Solicitor for the First Respondent:	Mr R Turner (Turner Coulson)

Date of Hearing:	20 February 2009
Date of Judgment:	20 February 2009