mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Outcome: applied
As Moffitt P, with whose judgment Hutley and Glass JJA agreed, said in Waind v Hill and National Employers' Mutual General Association Ltd. (1978) 1 NSWLR 376 ('Waind's case') at 381 there are three steps involved in dealing with subpoenas and documents that may be produced thereunder. At p381 Moffitt P said: 'As Jordan C.J. pointed out in Small's case [The Commissioner for Railways v Small (1938) 38 SR (NSW) 564] and, as appears in Burchard's case [Burchard v Macfarlane [1891] 2 QB 241] there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.'
Case: Aporo v Minister for Immigration and Citizenship [2008] FCA 102
Outcome: cited
July 2007, a delegate of the Minister decided to cancel Mr Aporo's visa under s 501 of the Act on the basis that he did not pass the character test. Mr Aporo was advised of this decision on 26 July 2007. Mr Aporo applied for review of the delegate's decision, which the Administrative Appeals Tribunal ('the Tribunal') affirmed ('the first Tribunal'). Mr Aporo appealed to the Federal Court which made orders in the nature of certiorari and mandamus quashing the decision of the first Tribunal and remitting the matter to the Tribunal to be heard and determined according to law ( Aporo v Minister for Immigration and Citizenship [2008] FCA 102 per Rares J). The hearing by the Tribunal ('the second Tribunal') on remittal took place on 1 July 2008. Mr Aporo was represented by experienced counsel. The decision to cancel his visa was affirmed by the second Tribunal on 18 July 2008. THE TRIBUNAL DECISIONS The first Tribunal decision The first Tribunal set out the law and the facts in some detail, including Mr Aporo's personal history. The Tribunal noted at [23] that Mr Aporo was diagnosed with dyslexia only a few years previously. After considering the evidence of the supporting witnesses, the first Tribunal turned to the psychiatric evidence, in particular a report provided by Dr Gary Banks, Consultant Clinical Psychologist, based on an interview and assessment sessions that Dr Banks conducted with Mr Aporo on 28 September 2007 lasting approximately four hours. Dr Banks was unavailable to give oral evidence at the hearing before the first Tribunal. Despite the submission by the Minister that Dr Banks' report should be given less weight because he was not available for cross-examination, the Tribunal said (at [44]) that the report was not controversial ' in that [Dr Banks] merely concludes that Mr Aporo needs to commit to intense rehabilitative treatment and that previous attempts toward his rehabilitation have been unsuccessful. I think that is a point on which both parties would agree '. As the first Tribunal noted at [44], Dr Banks' report goes no further than to suggest that rehabilitation is needed and that deportation may inhibit such rehabilitation. The first Tribunal's conclusion on the psychiatric evidence was (at [45]): I accept that the Applicant would benefit from the suggestions made by Dr Banks, however, the report gives minimal attention to the fact that the Applicant has had the past 18 years to reflect upon his behaviour and to modify it accordingly. The evidence is that the Applicant has yet to fully commit to completely rehabilitating. Dr Bank's [sic] report merely outlines options for the Applicant if he were to display such commitment.
Case: Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
Outcome: considered
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345 the Full Court dealt with a case where it was common ground that, because of convictions for a number of criminal offences, the appellant did not pass the character test. The issue there, as here, was whether the exercise of discretion by the Tribunal in its task of reviewing on the merits the decision of the Minister's delegate, miscarried. The Full Court pointed out at [4] that the Court's jurisdiction is derived from s 476A(1)(b) and (2) of the Act which have the effect of conferring on the Court jurisdiction the same as that of the High Court under s 75(v) of the Constitution in relation to, in this case, a decision of the Tribunal of the kind in question by reason of s 483 of the Act. In order to succeed the applicant has to demonstrate jurisdictional error on the part of the Tribunal. Even if the Tribunal were in error in respect of the minor matters relied upon by Mr Aporo, such as whether or not his half-brother and mother supported his claims of childhood abuse, such error did not go to the jurisdiction that the Tribunal was exercising in relation to s 501 of the Act. As in Cockrell , there was nothing to suggest that the Tribunal misunderstood the scope or ambit of the statutory jurisdiction or power, or misunderstood any statements or directives in Ministerial Direction No 21. The Tribunal determined for itself the factors necessary to make a decision in Mr Aporo's case. There was nothing to indicate that the Tribunal misunderstood its task or made an error of any significance in the way in which it approached its task. In reading the Tribunal's decision as a whole, it is apparent that the Tribunal correctly considered the question before it and the nature of the discretion it was called upon to exercise. Mr Aporo has failed to establish any of the grounds of his application. It follows that his application should be dismissed with costs. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 12 February 2009 Counsel for the Applicant: Mr J Mitchell (pro bono) Counsel for the First Respondent: Ms L Clegg Solicitor for the First Respondent: Clayton Utz Date of Hearing: 15 December 2008 Date of Judgment: 12 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/79.html
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576
Outcome: considered
Aporo had a reasonable opportunity to ascertain and respond to the determinative issues that arose ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-591). Indeed, the Tribunal makes it clear that it addressed the evidence put forward by Mr Aporo in relation to each of the issues. The Tribunal's findings of which he complains were findings upon matters advanced by Mr Aporo to the Tribunal. The Tribunal did not make findings of fact as to which there was no evidence advanced by Mr Aporo or no submissions made. It follows that Mr Aporo was given the opportunity to address the issues. Mr Aporo complains about the inferences and conclusions drawn from his evidence. This does not amount to a denial of procedural fairness. Mr Aporo does not point to material that had been supplied by or known to the Tribunal from which a conclusion was drawn that was not open on that material, even if he did not like the conclusion reached ( Alphaone at 591-2). Mr Aporo's reliance again on the ' distinct forensic disadvantage due to his illiteracy and dyslexia ' is answered by the fact of legal representation. The Tribunal was entitled to assume that counsel was properly instructed and, indeed, it is not suggested that this was not the case. Mr Aporo says that the Tribunal's conclusions were arbitrary and based on speculation. As I read the decision, the Tribunal's conclusions were based upon the evidence that it set out and were responsive to the submissions made. Mr Aporo says that the Tribunal's conclusions were based upon its own observations, expertise or experience. That allegation is not made out. The Tribunal based its conclusions on the evidence and on the reports which were before it. There was apparently no challenge in the Tribunal to Mr Aporo's criminal record.
Case: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558
Outcome: cited
Aporo's grounds raise various criticisms of the decision of the delegate. The function of the Court is to review the Tribunal decision. Complaints about the conduct of the delegate are not relevant to this application. The Court has no power to review the delegate's decision. The Tribunal conducted a full merits review and for that reason the conduct of the delegate, if it were deficient, was rectified ( Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] per Wilcox J, with whom Conti and Stone JJ agreed). I shall consider the grounds of the application to the extent that they concern the second Tribunal's decision. I shall now simply refer to the second Tribunal as the Tribunal.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
Aporo's submissions are, in summary, as follows: the principles of natural justice must be applied flexibly and the demands of natural justice are dependent upon the factual circumstances of each case ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 612); Mr Aporo was at a distinct forensic disadvantage due to his illiteracy and dyslexia. The hearing was the only opportunity for him to address adverse inferences that could be drawn from his criminal record and history of drug addiction; the Tribunal was aware of his disability and did not read to him excerpts from any of the documents that formed the basis of its appraisals. He was thereby denied a reasonable opportunity to address the documents and inferences drawn from them; the issues that were collectively determinative of his claims, as summarised above at [73], were not raised at the hearing by the Tribunal or the Minister; in those circumstances, it was procedurally unfair to Mr Aporo for the Tribunal in its findings to attribute weight selectively to documentary material in a manner that was ' in substantial respects unreasoned, perverse and in respect to the witness statement, plainly misconceived '. Mr Aporo takes each comment and finding made by the Tribunal, together with the criticisms he raises in his application and complains that they were not raised with him at the hearing and were collectively determinative of the Tribunal decision. The matters so relied upon are individually very different. Some are factual findings of the Tribunal, some are observations of the Tribunal, some are criticisms raised by Mr Aporo now cited as established fact. I deal with these matters elsewhere in these reasons where they are repeatedly raised. In summary:
Case: Luu v Renevier (1989) 91 ALR 39
Outcome: cited
Aporo says that the Tribunal was not obliged to consider an estimate of the likelihood of recidivism as a criterion under Ministerial Direction No 21 (at [2.10]). He submits that, in circumstances where expert evidence as to the risk of recidivism is inadequate, it was unreasonable for the Tribunal not to hold a further inquiry of readily available information regarding that issue ( Luu v Renevier (1989) 91 ALR 39 at 47 8 and 50). The Tribunal had before it Mr Murdoch's report, the Villawood assessment as outlined by Mr Aporo, as well as comments by Grove J concerning recidivism. There was, unlike Luu , a foundation for the Tribunal's conclusion. Dr Banks' report discussed the general question of recidivism which the Tribunal also took into account, although he did not give a present estimate of likelihood. In those circumstances, the Tribunal was not obliged to make a case for Mr Aporo ( Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] ).
Case: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151
Outcome: considered
Tribunal had before it Mr Murdoch's report, the Villawood assessment as outlined by Mr Aporo, as well as comments by Grove J concerning recidivism. There was, unlike Luu , a foundation for the Tribunal's conclusion. Dr Banks' report discussed the general question of recidivism which the Tribunal also took into account, although he did not give a present estimate of likelihood. In those circumstances, the Tribunal was not obliged to make a case for Mr Aporo ( Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] ). Mr Aporo relies on SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14 at [53] [56]. In that case Allsop J considered a circumstance in which the Tribunal relied upon the fact that an appellant failed to submit a response to the invitation to make submissions when in fact the Tribunal had received a cover sheet stating that submissions were enclosed even though, apparently by mistake, they were not. The appellant submitted that in those circumstances the Tribunal should have made inquiries about the missing enclosure and the comments the appellant intended to make, as it was on notice that the enclosure had been forwarded. Justice Allsop accepted the ' straightforward recognition ' that no duty to inquire about evidence arises from the terms of s 427 of the Act (at [46]). His Honour noted that in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) said, in the context of explaining how detailed the questioning of an applicant was required to be, that '[t] he Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on '. However, Allsop J concluded that that reference had nothing had to do with the specific circumstances of the case before him. Justice Allsop concluded that the giving of an invitation to comment carries with it an obligation under the Act to deal with a communication in response to that invitation in a reasonably business-like way, including the reading of any response to the invitation. The question in SZJBA was not whether the Tribunal should have undertaken some evidence gathering task (at [59]). The failure ' was to take a simple administrative step of an office or housekeeping nature '. The obligation does not rest on some positive duty of inquiry. It is only in exceptional cases that a failure to make an inquiry may ground a finding of jurisdictional error (at [60]; see also Le at [60] per Kenny J).
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
summarise Mr Aporo's submissions on the first ground, he relies upon a number of circumstances to establish that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided ( Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] ). Mr Aporo submits that: (a) the material before the delegate and the Tribunal was unverified and untested and neither the delegate nor the Tribunal inquired as to its provenance. Specifically: the criminal record and sentencing reports are not certified and contain discrepancies; Mr Murdoch's reports do not contain an explanation of his training, study or experience. They do not explain how the conclusion was reached that Mr Aporo was at a "high risk" of recidivism; there was no material before the Tribunal as to the provenance of the statement of facts taken into account by English DCJ. The applicant speculates that ' it is entirely conceivable ' that the statement of facts was prepared by the prosecution and tendered in committal proceedings and was accepted notwithstanding that the facts may have been incorrect. (b) The Tribunal's findings are in a number of respects perverse, in the sense of being mere assertion, lacking rational foundation and selective of material going only one way. Specifically, he submits that: the preference for Mr Murdoch's assessment as to the risk of recidivism over that of Dr Banks was unexplained and contrary to the weight of the material on this issue. Mr Murdoch's assessment was not based on specialised knowledge or training and there is no obvious basis for his conclusion. Conversely, the opinion of Dr Banks is based on specialised knowledge. The Tribunal gave Dr Banks' report little or no weight because it did not contain an estimate of the likelihood of recidivism; the weight given by the Tribunal to those parts of Mr Aporo's evidence concerning his childhood are without any basis. A similar approach was taken with respect to Mr Aporo's relationship with Ms Kara; with respect to the likelihood of recidivism, the Tribunal drew inferences from material before it that were neither natural nor obvious. There was no intellectual engagement with the material which indicated that Mr Aporo has responded to drug and counselling programs and the conduct of the Tribunal indicates that it was not open to persuasion; The Tribunal dealt with the material before it in a selective manner. The provenance of the material relied upon Mr Aporo says that the failure of the Tribunal to inquire into the provenance of the material before it indicates bias or apprehended bias on the part of the Tribunal. The alleged obligation concerning the provenance of the material is also raised as a separate ground in the application. Other matters are also the basis of more than one ground. This has led to a degree of repetition in these reasons for judgment.
Case: Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: cited
Aporo relies on SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14 at [53] [56]. In that case Allsop J considered a circumstance in which the Tribunal relied upon the fact that an appellant failed to submit a response to the invitation to make submissions when in fact the Tribunal had received a cover sheet stating that submissions were enclosed even though, apparently by mistake, they were not. The appellant submitted that in those circumstances the Tribunal should have made inquiries about the missing enclosure and the comments the appellant intended to make, as it was on notice that the enclosure had been forwarded. Justice Allsop accepted the ' straightforward recognition ' that no duty to inquire about evidence arises from the terms of s 427 of the Act (at [46]). His Honour noted that in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) said, in the context of explaining how detailed the questioning of an applicant was required to be, that '[t] he Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on '. However, Allsop J concluded that that reference had nothing had to do with the specific circumstances of the case before him. Justice Allsop concluded that the giving of an invitation to comment carries with it an obligation under the Act to deal with a communication in response to that invitation in a reasonably business-like way, including the reading of any response to the invitation. The question in SZJBA was not whether the Tribunal should have undertaken some evidence gathering task (at [59]). The failure ' was to take a simple administrative step of an office or housekeeping nature '. The obligation does not rest on some positive duty of inquiry. It is only in exceptional cases that a failure to make an inquiry may ground a finding of jurisdictional error (at [60]; see also Le at [60] per Kenny J).
Case: SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22
Outcome: considered
Aporo submits that it would have been a "simple step" for the Tribunal to have pursued the avenues of inquiry offered by the availability of Mr Murdoch and Dr Banks to resolve any conflict in the material ( SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 at [29]). It is not a question of whether it would have been a simple step for the Tribunal to pursue the avenues of inquiry. There was no conflict in the material before the Tribunal, as Dr Banks did not give an estimate. Rather, the Tribunal was unable from Dr Banks' report to draw a conclusion as to the likelihood of recidivism or the effect of rehabilitative steps on that likelihood, even if Mr Aporo were to undertake them. Even if there were a conflict, the Tribunal is not obliged whenever there is a conflict in the evidence presented to conduct its own investigation to resolve that apparent conflict if it is able to give reasons for preferring or giving more weight to some evidence over other evidence or preferring one opinion over another. It is not simply a question of whether or not Dr Banks had provided an estimate in the sense of some mathematical analysis. The resolution of a conflict in the evidence is not the taking of the sort of step of embarking upon the Tribunal's own inquiries as to the underlying facts, which then imports further obligations ( SZIAI at [29]). The obligation on an administrator to make its own inquiries is strictly limited ( SZIAI at [25]).