Minister for Immigration and Citizenship v SZLFX

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

The Court 1 Before the Court is a notice of appeal and a notice of contention. The appellant accepts that if the contention of which the first respondent has given notice succeeds the appeal must be dismissed. That contention places reliance on the decision of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83. The appellant accepts that if SZKTI was rightly decided, the contention of which the first respondent has given notice must succeed. The appellant formally submitted that SZKTI was wrongly decided. However, we agree with the judgment of the Full Court delivered this morning in SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 that SZKTI is not plainly wrong. This Court should therefore follow it. The first respondent's contention succeeds. 2 In the circumstances it is not necessary in the interests of justice for us to express a concluded view on the merits of the only ground of appeal raised by the notice of appeal. The proper construction of s 424A(1) of the Migration Act 1958 (Cth) has been authoritatively considered in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 and SZKLJ v Minister for Immigration and Citizenship [2008] FCA 644, amongst other authorities. The real issue raised by the ground of appeal called for consideration, in the context of the duty imposed on the Tribunal by s 424A, the proper understanding of the approach adopted by the Tribunal in this case. 3 The orders of the Court are that the appeal be dismissed with costs and the matter remitted to the Tribunal to be determined according to law. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Bennett and Flick.

Associate: Dated: 10 July 2008 Counsel for the Appellant: Mr A Robertson SC with Mr A Lloyd

Solicitor for the Appellant: Sparke Helmore

Solicitor for the First Respondent: Christopher Levingston & Associates