SZLAY v Minister for Immigration and Citizenship [2008] FCA 743

Procedural Posture

Appeal From the Federal Magistrates Court of Australia in an Immigration/refugee Matter / Application for Adjournment and Leave to Amend Notice of Appeal; Appeal Dismissed

Legal Issues

1. 1 ['Whether the appeal should be adjourned so that counsel could be retained to argue a proposed new ground of appeal.' 'Whether leave should be granted to amend the notice of appeal to include a ground concerning s 113 of the Penal Code of Mongolia and persecution of homosexuals.' 'Whether the proposed new ground had sufficient merit, given the material before the Refugee Review Tribunal and the way the case had previously been conducted.']

Ratio Decidendi

The adjournment and leave to amend were refused because the proposed new ground concerning s 113 of the Penal Code of Mongolia was devoid of merit: the RRT had addressed material about that provision and the treatment of homosexuals in Mongolia, the appellant had long been aware of the point and had not previously argued that he faced persecution by legal strictures against homosexuality, the material did not suggest that homosexuals in Mongolia faced prosecution under the Penal Code as a matter of practical reality, and no adequate explanation was given for the delay in seeking counsel. As the appellant then abandoned the appeal and the existing grounds had no prospects of success, the...

Court Disposition

Appeal dismissed with costs.

Orders

• ['The appeal be dismissed.' "The appellant pay the first respondent's costs, to be taxed in default of agreement."]