SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814

FEDERAL COURT OF AUSTRALIA

SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(2)(a) Judiciary Act 1903 (Cth) s 55ZF Migration Act 1958 (Cth) ss 91R(3), 91X Federal Court Rules O 52 r 5 Federal Magistrates Court Rules 2001 r 13.03A(c) Décor Corp v Dart Industries Inc (1991) 3 FCR 397 applied Jess v Scott (1986) 12 FCR 187 cited Johnston v Comcare (2002) 124 FCR 160 considered NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 cited Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 cited SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451 cited SZKCE v Minister for Immigration and Citizenship [2008] FCA 302 cited VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 applied SZKCE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD2410 of 2007

LOGAN J

1 December 2008

BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2410 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKCE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE OF ORDER: 1 December 2008

WHERE MADE: BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The requirement that an application for leave to appeal be filed within 21 days of the date of pronouncement of the judgment of the Federal Magistrates Court on 12 November 2007 is dispensed with. 2. In lieu of that requirement, the time for the filing of the application for leave to appeal is extended to 7 December 2007. 3. Leave to appeal against the judgment of the Federal Magistrates Court on 12 November 2007 is granted to the Applicant, restricted to the following ground: The Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal's decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa. In so doing, the Tribunal failed to comply with the stipulation, made in s 91R(3) of the Migration Act 1958 (Cth) that such conduct must be disregarded. 4. The letter of the First Respondent's solicitors to the court be: (a) marked as Exhibit 2; (b) placed in a sealed envelope marked with a description of the exhibit and the direction "Not to be opened without the leave of the Court or a Judge". 5. There is liberty to apply. 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