Minister for Immigration and Citizenship v SZLFX

[2008] FCAFC 125

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125

CORRIGENDUM

MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZLFX and REFUGEE REVIEW TRIBUNAL

NSD 625 OF 2008

BRANSON, BENNETT AND FLICK JJ
27 JUNE 2008 (CORRIGENDUM 17 JULY 2008)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 625 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

SZLFX
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:	BRANSON, BENNETT AND FLICK JJ
DATE:	27 JUNE 2008
PLACE:	SYDNEY

CORRIGENDUM

1. On the cover page delete the citation “SZKLJ v Minister for Immigration and Citizenship [2008] FCA 644 cited” and replace with “SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 cited”.

2. In the second paragraph delete “SZKLJ v Minister for Immigration and Citizenship [2008] FCA 644” and replace with “SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198”.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justices Branson, Bennett and Flick.

Associate:

Dated:        17 July 2008

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125

Migration Act 1958 (Cth) s 424A(1)

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 cited
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 followed
SZKLJ v Minister for Immigration and Citizenship [2008] FCA 644 cited

SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 applied

MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZLFX and REFUGEE REVIEW TRIBUNAL

NSD 625 OF 2008

BRANSON, BENNETT AND FLICK JJ
27 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 625 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

SZLFX
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:	BRANSON, BENNETT AND FLICK JJ
DATE OF ORDER:	27 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

3.The matter be remitted to the Refugee Review Tribunal to be determined according to law.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 625 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

SZLFX
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:	BRANSON, BENNETT AND FLICK JJ
DATE:	27 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. Before the Court is a notice of appeal and a notice of contention.  The appellant accepts that if the contention of which the first respondent has given notice succeeds the appeal must be dismissed.  That contention places reliance on the decision of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83. The appellant accepts that if SZKTI was rightly decided, the contention of which the first respondent has given notice must succeed.  The appellant formally submitted that SZKTI was wrongly decided.  However, we agree with the judgment of the Full Court delivered this morning in SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 that SZKTI is not plainly wrong.  This Court should therefore follow it.  The first respondent’s contention succeeds.

2. In the circumstances it is not necessary in the interests of justice for us to express a concluded view on the merits of the only ground of appeal raised by the notice of appeal. The proper construction of s 424A(1) of the Migration Act 1958 (Cth) has been authoritatively considered in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 and SZKLJ v Minister for Immigration and Citizenship [2008] FCA 644, amongst other authorities. The real issue raised by the ground of appeal called for consideration, in the context of the duty imposed on the Tribunal by s 424A, the proper understanding of the approach adopted by the Tribunal in this case.

3. The orders of the Court are that the appeal be dismissed with costs and the matter remitted to the Tribunal to be determined according to law.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Bennett and Flick.

Associate:

Dated:        10 July 2008

Counsel for the Appellant:	Mr A Robertson SC with Mr A Lloyd
Solicitor for the Appellant:	Sparke Helmore
Counsel for the First Respondent:	Mr L Karp
Solicitor for the First Respondent:	Christopher Levingston & Associates

Date of Hearing:	27 June 2008
Date of Judgment:	27 June 2008