FEDERAL COURT OF AUSTRALIA

SZKCS v Minister for Immigration [2008] FCA 1489

Migration Act 1958 (Cth)

Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788

SZJDS v Minister for Immigration and Citizenship [2008] FCA 1093

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 156

SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448

SZKCS and SZKCT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD484 of 2008

REEVES J

24 JULY 2008

DARWIN

THE COURT ORDERS THAT:

1.                  Leave is granted to the appellant to amend the notice of appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     I give the appellant leave to file the amended notice of appeal.  I do so taking into account the relevant questions that are set out in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] to [24].

2                     In relation to the question whether the proposed grounds have reasonable prospects of success, I take the approach that I outlined in SZJDS v Minister for Immigration and Citizenship [2008] FCA 1093 at [30] and [31] (‘SZJDS’), namely that I should grant leave unless I consider the prospects of success are such that the proposed grounds of appeal are devoid of merit, or will clearly fail, or are hopeless or unarguable. 

3                     Further, I take into account what I said in SZJDS in reliance on the High Court’s decision in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 156, about the need for the assessment, at this stage, to be a rough and ready one.  On that approach, I could not conclude that the proposed grounds of appeal are devoid of merit, or unarguable, or fall within any of the other terms I identified in SZJDS, such that I should refuse leave.

4                     The explanation given as to why the matters were not raised below is that there has been a change of legal representation.  That is commonplace, I suppose, in this sort of situation. 

5                     As to the dislocation to the court and the efficient use of judicial resources, I express the same concerns Justice Madgwick did in SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448 at [68].  However, like his Honour, I consider that the interests of justice in allowing the appellant to pursue this appeal outweigh those considerations. 

6                     The proposed bias ground does not raise an issue that is of importance beyond this case; though the proposed ground alleging a breach of s 424A of the Migration Act 1958 (Cth) may, depending upon how the argument is developed at the hearing of this appeal. 

7                     Mr Mitchell, on behalf of the first respondent, has not alleged any actual prejudice, apart from costs, and that of course can be remedied with an order for costs.  I take into account also that on the appellant’s side, it is, I think, a matter of quite significant potential prejudice if she is unable to pursue these proposed grounds of appeal and is thereby deprived of the opportunity to obtain a protection visa in this country.

8                     So, for those reasons, I grant leave to the appellant to amend the notice of appeal.

Associate:

Dated:         24 July 2008