SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67

FEDERAL COURT OF AUSTRALIA

SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67

ADMINISTRATIVE LAW – appeal from a Federal Magistrate's decision to refuse to issue the constitutional writs which had been claimed on the basis of fraud allegedly perpetrated on the Refugee Review Tribunal – crucial findings made by the Magistrate not supported by the evidence and in error – insufficient basis for making any finding on appeal in respect of the alleged fraud – Magistrate's decision set aside – matter remitted to the Federal Magistrates Court for rehearing Migration Act 1958 (Cth), s 424 Federal Court Rules, Order 80

SZMGX v Minister for Immigration and Citizenship [2008] FMCA 1529 set aside Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, (2008) 100 ALD 443 cited SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 cited SZMGX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1961 of 2008

BENNETT, REEVES AND FOSTER JJ

5 JUNE 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1961 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMGX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGES: BENNETT, REEVES AND FOSTER JJ

DATE OF ORDER: 5 JUNE 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The orders made by Federal Magistrate Scarlett on 20 November 2008 be set aside. 3. The matter be remitted to the Federal Magistrates Court for rehearing. 4. The first respondent pay the appellant's costs of and incidental to the appeal. 5. There be no order as to the costs of the hearing below.

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