SZKHU v Minister for Immigration and Citizenship [2007] FCA 1149

SZKHU v Minister for Immigration and Citizenship [2007] FCA 1149

Because the Federal Magistrate's dismissal of the application as out of time could not be sustained in light of Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105, and because the merits and any rule 44.12(1)(a) show cause issue had not yet been considered at first instance, leave to appeal was granted, the appeal was allowed, the Federal Magistrates Court orders were set aside, and the matter was remitted for determination according to law.

Jurisdiction
Australia
Judgment Date
03 August 2007
Procedural Posture
Application for Leave to Appeal From an Interlocutory Judgment of the Federal Magistrates Court of Australia in a Migration Matter / Federal Court Determination of Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal allowed; orders of the Federal Magistrates Court set aside; matter remitted to the Federal Magistrates Court of Australia for determination according to law.
Legal Topics
['protection Visa' 'refugee Review Tribunal Review' 'jurisdiction' 'out of Time Application' 'leave to Appeal' 'remittal' 'show Cause Procedure']
['migration Law' 'administrative Law' 'appellate Procedure'] ['protection Visa' 'refugee Review Tribunal Review' 'jurisdiction' 'out of Time Application' 'leave to Appeal' 'remittal' 'show Cause Procedure']

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Procedural Posture

Application for Leave to Appeal From an Interlocutory Judgment of the Federal Magistrates Court of Australia in a Migration Matter / Federal Court Determination of Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave to appeal from the Federal Magistrates Court of Australia should be granted.' 'Whether the Federal Magistrates Court orders dismissing the application for want of jurisdiction as out of time should be set aside in light of Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105.' 'Whether the Federal Court should dismiss the leave application as futile on the basis that the applicant had no arguable case for the relief claimed.']

Ratio Decidendi

Because the Federal Magistrate's dismissal of the application as out of time could not be sustained in light of Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105, and because the merits and any rule 44.12(1)(a) show cause issue had not yet been considered at first instance, leave to appeal was granted, the appeal was allowed, the Federal Magistrates Court orders were set aside, and the matter was remitted for determination according to law.

Court Disposition

Leave to appeal granted; appeal allowed; orders of the Federal Magistrates Court set aside; matter remitted to the Federal Magistrates Court of Australia for determination according to law.

Orders

  • ['Leave to appeal from the Federal Magistrates Court of Australia be granted.' 'The appeal be allowed.' 'The orders made in the Federal Magistrates Court of Australia on 2 April 2007 be set aside.' 'The matter be remitted to the Federal Magistrates Court of Australia for determination according to law.']