SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980

FEDERAL COURT OF AUSTRALIA

SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980

MIGRATION – Appeal from decision of Federal Magistrate – where delegate of first respondent refused application for protection visa – where second respondent invited appellant to hearing – where appellant failed to attend hearing – where second respondent under s 426A Migration Act 1958 (Cth) affirmed decision of first respondent – where appellant on application for constitutional writs in Federal Magistrates Court alleged fraud by agent – where Federal Magistrate made no factual findings as to fraud because third party fraud immaterial to judicial review – where subsequent High Court decision that fraudulent conduct of migration agent relevant to judicial review of tribunal decision – whether fraud unarguable on evidence before Federal Magistrate. Held: Fraud not unarguable on evidence before Federal Magistrate – appeal allowed – matter remitted to Federal Magistrates Court for rehearing. Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) s 426A Briginshaw v Briginshaw (1938) 60 CLR 336 referred to Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 referred to SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401 referred to SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420 referred to SZFNX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 194 OF 2007

BESANKO J

13 DECEMBER 2007

ADELAIDE (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY NSD 194 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFNX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent