SZJGA v Minister for Immigration and Citizenship [2008] FCA 787

FEDERAL COURT OF AUSTRALIA

SZJGA v Minister for Immigration and Citizenship [2008] FCA 787

MIGRATION – appeal from decision of Federal Magistrate – discretion to adjourn hearing on application for judicial review of decision of Refugee Review Tribunal – certain evidence not before Federal Magistrates Court – error of law to assume evidence able to be put before Full Court of the Federal Court exercising appellate jurisdiction – appellant claimed not to have had competent interpreter at Tribunal hearing – error of law to require independent evidence or corroboration of claim – appellant himself competent to give evidence – appeal allowed and application for review remitted to Federal Magistrates Court for rehearing

Evidence Act 1995 (Cth) s 64, s 67 Federal Court of Australia Act 1976 (Cth) s 27 Migration Act 1958 (Cth) ss 91R, 424, 424A CDJ v VAJ (1998) 197 CLR 172 referred to SZJGA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD2334 of 2007

BESANKO J

29 MAY 2008

adelaide (heard in sydney)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2334 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJGA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J DATE OF ORDER: 29 MAY 2008

WHERE MADE: ADELAIDE (heard in sydney)

THE COURT ORDERS THAT:

1. The appeal be allowed and the orders made by the Federal Magistrate on 5 November 2007 be set aside. 2. The appellant's application for judicial review filed in the Federal Magistrates Court on 21 August 2006 and as amended by amended application filed on 29 December 2006 be remitted to that Court for hearing and determination 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