SZKCS v Minister for Immigration

[2008] FCA 1489

FEDERAL COURT OF AUSTRALIA

SZKCS v Minister for Immigration [2008] FCA 1489

Migration Act1958 (Cth)

Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
SZJDS v Minister for Immigration and Citizenship [2008] FCA 1093
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 156
SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448

SZKCS and SZKCT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD484 OF 2008

REEVES J
24 JULY 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NSD484 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCS
First Appellant

SZKCT
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	24 JULY 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.Leave is granted to the appellant to amend the notice of appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NSD484 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCS
First Appellant

SZKCT
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	24 JULY 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1. I give the appellant leave to file the amended notice of appeal.  I do so taking into account the relevant questions that are set out in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] to [24].

2. In relation to the question whether the proposed grounds have reasonable prospects of success, I take the approach that I outlined in SZJDS v Minister for Immigration and Citizenship [2008] FCA 1093 at [30] and [31] (‘SZJDS’), namely that I should grant leave unless I consider the prospects of success are such that the proposed grounds of appeal are devoid of merit, or will clearly fail, or are hopeless or unarguable. 

3. Further, I take into account what I said in SZJDS in reliance on the High Court’s decision in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 156, about the need for the assessment, at this stage, to be a rough and ready one. On that approach, I could not conclude that the proposed grounds of appeal are devoid of merit, or unarguable, or fall within any of the other terms I identified in SZJDS, such that I should refuse leave.

4. The explanation given as to why the matters were not raised below is that there has been a change of legal representation.  That is commonplace, I suppose, in this sort of situation. 

5. As to the dislocation to the court and the efficient use of judicial resources, I express the same concerns Justice Madgwick did in SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448 at [68]. However, like his Honour, I consider that the interests of justice in allowing the appellant to pursue this appeal outweigh those considerations.

6. The proposed bias ground does not raise an issue that is of importance beyond this case; though the proposed ground alleging a breach of s 424A of the Migration Act1958 (Cth) may, depending upon how the argument is developed at the hearing of this appeal.

7. Mr Mitchell, on behalf of the first respondent, has not alleged any actual prejudice, apart from costs, and that of course can be remedied with an order for costs.  I take into account also that on the appellant’s side, it is, I think, a matter of quite significant potential prejudice if she is unable to pursue these proposed grounds of appeal and is thereby deprived of the opportunity to obtain a protection visa in this country.

8. So, for those reasons, I grant leave to the appellant to amend the notice of appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        24 July 2008

Counsel for the Appellants:	Mr R Turner
Solicitor for the Appellants:	Turner Coulson Immigration Lawyers
Counsel for the Respondents:	Mr J Mitchell

Date of Hearing:	24 July 2008
Date of Judgment:	24 July 2008