SZUYP v Minister for Immigration

This matter concerned an application by SZUYP (the applicant) against the Minister for Immigration (the Minister). The dispute revolved around the admissibility of a decision made by an OMARA delegate in previous proceedings. The case was heard by Judge Nicholls.

The central legal issue before the court was whether the OMARA decision could be admitted as evidence in the current proceedings, specifically in light of section 91 of the Evidence Act. Section 91 of the Evidence Act generally prevents the tender of evidence of a decision or finding of fact in an Australian or overseas proceeding for the purpose of proving that fact. The applicant contended that the OMARA decision was admissible to demonstrate the issues before the OMARA delegate and the evidence presented, relying on the definition of "Australian court" in the Evidence Act and case law such as *Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L (No 4)*.

Judge Nicholls reasoned that while the OMARA delegate was authorised to hear, receive, and examine evidence, and thus potentially fell within the definition of an "Australian court" for certain purposes, section 91 of the Evidence Act operated to exclude the OMARA decision from being used to prove the facts that were in issue in those prior proceedings. The court applied the principles from *Attorney General of New South Wales v Martin*, which require an analysis of the facts in issue in the prior proceedings, the facts found, and the purpose for which the judgment is sought to be used. The applicant's stated intention was to use the OMARA decision to prove the facts contained within it, which was precisely what section 91 prohibited.

The court agreed with the Minister that the applicant sought to use the "facts" contained in specific parts of the OMARA decision for the purpose of proving those facts, thereby falling foul of section 91 of the Evidence Act.