FEDERAL COURT OF AUSTRALIA
SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045
Citation: SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045 Appeal from: SZOEV v Minister for Immigration and Citizenship [2010] FMCA 407 Parties: SZOEV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR File number: NSD 780 of 2010 Judge: FLICK J Date of judgment: 24 September 2010 Catchwords: MIGRATION – allegation of bias on part of Tribunal – no failure to consider integer of claim – fact-finding is the task of the Tribunal – no appellable error on the part of the Federal Magistrate
PRACTICE AND PROCEDURE – leave sought to raise new grounds – new grounds without merit – leave refused
Legislation: Migration Act 1958 (Cth) Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14, 197 CLR 510, cited
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379, cited
Dart Industries Inc v Decor Corporation Pty Ltd (1989) 15 IPR 403, followed
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, 205 CLR 507, applied
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, 128 FCR 553, followed
MZYAA v Minister for Immigration and Citizenship [2009] FCA 1303, cited
MZYEH v Minister for Immigration and Citizenship [2010] FCA 524, followed
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, 214 ALR 264, cited
NAOX v Minister for Immigration and Citizenship [2009] FCA 1056, 112 ALD 54, cited
Re J R L; Ex parte C J L (1986) 161 CLR 342, applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407, followed
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 179 ALR 425, cited
SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376, 114 ALD 590, cited
SZOEV v Minister for Immigration and Citizenship [2010] FMCA 407, affirmed
SZLVM v Minister for Immigration and Citizenship [2008] FCA 1245, followed
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, 131 FCR 102, citedDate of hearing: 2 September 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION
NSD 780 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOEV
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
24 SEPTEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 29 June 2010 is dismissed.
2.The Appellant is to pay the costs of the First Respondent.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court…
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- SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045
- Case
- [2010] FCA 1045
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CaseChat Overview and Summary
In the case of SZOEV v Minister for Immigration and Citizenship, the appellant challenged the decision of the Federal Magistrate who dismissed his appeal against the refusal of his application for a protection visa. The appellant, a citizen of Hungary, alleged that he and his son would face persecution if returned to Hungary due to their political beliefs and associations. The dispute primarily revolved around the refusal of the Federal Magistrate to admit further evidence regarding the medical condition of the appellant's son, which the appellant claimed was relevant to his refugee status claim.
The legal issues before the court included whether the Federal Magistrate had erred in refusing to consider additional evidence and whether there was any bias on the part of the Tribunal that warranted a new hearing. The court needed to determine if the Federal Magistrate had failed to consider a crucial aspect of the claim and whether the refusal to admit new evidence constituted an appellable error.
The court found that the Federal Magistrate had not failed to consider the integer of the claim, as the fact-finding was within the purview of the Tribunal, not the court. The court held that there was no appellable error on the part of the Federal Magistrate in refusing to admit further evidence, as the appropriate time for such evidence was before the Tribunal, not during the appeal. The court also noted that any new evidence would not have assisted in resolving the grounds of appeal. The court concluded that none of the grounds of appeal were substantiated, leading to the dismissal of the appeal. The appellant was ordered to pay the costs of the first respondent.
The court's orders were clear and decisive, affirming the dismissal of the appeal and mandating that the appellant bear the costs of the first respondent. This outcome underscores the importance of adhering to procedural timelines for presenting evidence and the limited scope of appellate review in refugee status cases.
The legal issues before the court included whether the Federal Magistrate had erred in refusing to consider additional evidence and whether there was any bias on the part of the Tribunal that warranted a new hearing. The court needed to determine if the Federal Magistrate had failed to consider a crucial aspect of the claim and whether the refusal to admit new evidence constituted an appellable error.
The court found that the Federal Magistrate had not failed to consider the integer of the claim, as the fact-finding was within the purview of the Tribunal, not the court. The court held that there was no appellable error on the part of the Federal Magistrate in refusing to admit further evidence, as the appropriate time for such evidence was before the Tribunal, not during the appeal. The court also noted that any new evidence would not have assisted in resolving the grounds of appeal. The court concluded that none of the grounds of appeal were substantiated, leading to the dismissal of the appeal. The appellant was ordered to pay the costs of the first respondent.
The court's orders were clear and decisive, affirming the dismissal of the appeal and mandating that the appellant bear the costs of the first respondent. This outcome underscores the importance of adhering to procedural timelines for presenting evidence and the limited scope of appellate review in refugee status cases.
Orders
Orders of the court
1. The Notice of Appeal filed on 29 June 2010 is dismissed.
2. The Appellant is to pay the costs of the First Respondent.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The final Ground of Appeal is also to be rejected. CONCLUSIONS At the end of the hearing of the appeal, the Appellant sought an opportunity to tender further evidence – particularly evidence in respect to the medical condition of his son. This Court may, even when hearing an appeal, permit further evidence to be adduced. But the application to adduce further evidence was rejected. The time for advancing evidence going to the merits of claims for refugee status is before the Tribunal: cf. Abebe v The Commonwealth of Australia [1999] HCA 14 at [187], 197 CLR 510 at 576 per Gummow and Hayne JJ. Such evidence as was sought to be tendered was essentially evidence going to the merits of the claims to refugee status. But the task of resolving those factual merits is a task entrusted by the legislature to the Tribunal and not this Court. Further medical evidence was in any event provided to the Tribunal even after it had concluded its own hearing. There was thus no reason for now entertaining further evidence and any such evidence would not (in any event) have assisted in the resolution of any of the Grounds of Appeal advanced for consideration. None of the Grounds of Appeal have been made out. The appeal should be dismissed. There is no reason why costs should not follow the event. The Appellant should pay the costs of the First Respondent. The Orders of the Court are:1.The Notice of Appeal filed on 29 June 2010 is dismissed.2.The Appellant is to pay the costs of the First Respondent.
Ratio Decidendi
Legal Principle Established
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