Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZIEW v Minister for Immigration and Citizenship [2008] FCA 522
CITIZENSHIP AND MIGRATION – migration – review of decisions – Refugee Review Tribunal – conduct of review – evidence – hearsay evidence where maker of original statement unavailable CITIZENSHIP AND MIGRATION – migration – review of decisions – judicial review – grounds of review – bias – apprehended bias Held: Rejection of witness' hearsay evidence merely on the basis that Tribunal had no opportunity to test the evidence of the maker of the original statement is a jurisdictional error – may also be seen as apprehended bias
Migration Act 1958 (Cth)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FCR 409 cited NADH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 applied R v War Pensions Entitlement Appeal Tribunal, Ex parte Bott (1933) 50 CLR 227 applied
Heydon JD, Cross on Evidence (7th Australian ed, Butterworths, 2004) SZIEW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 830 OF 2007
MADGWICK J
18 APRIL 2008
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 830 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZIEW
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: MADGWICK J DATE OF ORDER: 18 APRIL 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. Leave be granted to raise as a ground of appeal that the second respondent erred in rejecting out of hand hearsay evidence given by a witness, though not raised in the court below. 2. The appeal be allowed. 3. The orders made by the Federal Magistrates Court on 16 April 2007 be set aside. 4. In lieu thereof it be ordered that the following writs issue: (a) a writ of certiorari to quash the decision of the second respondent of 7 November 2006; (b) a writ of prohibition directed to the first respondent prohibiting the first respondent from acting upon or giving effect to or proceeding further upon the decision of the second respondent; and (c) a writ of mandamus to compel the second respondent to reconsider the application according to law. 5. The first respondent is to pay the appellant's costs of the proceedings in the Federal Magistrates Court. 6. The appellant is to pay the first respondent's costs in this Court Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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