mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834
Outcome: followed
Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668 , Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185 , Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834.
Case: SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779
Outcome: followed
Numerous authorities have held that, absent any default by the Tribunal in the fulfilment of its statutory obligations relating to the provision of an invitation to attend a hearing, no ground of procedural unfairness arises because of some default on the part of an agent retained by an applicant. In NBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1668 , Barnes FM at 33, adopting the observations of Lord Bridge in Regina v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 at 898, rejected the submission that fraud by an agent constituted jurisdictional error. In SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 Bennett J considered the circumstance in which an applicant claimed his migration agent had acted without consultation or instructions and in consequence an invitation to attend a Tribunal hearing was declined. Her Honour concluded that since the Tribunal's letter was forwarded in accordance with the relevant statutory requirements, there was no failure to give the applicant the opportunity to appear before the Tribunal, even though the applicant claimed that he had never received it. Accordingly the Tribunal was entitled to make a decision on the application for review in the absence of the applicant. The same conclusions were made in Applicant M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23. In SZBBL v Minister for Immigration [2004] FMCA 185 , Driver FM rejected the submission that there had been a denial of natural justice because of default on the part of the migration agent. His Honour's decision was upheld on appeal in this Court by Tamberlin J: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834.
Case: Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1
Outcome: referred to
In SZFDE the majority found that the legislative scheme contained in Div 4 of the Act required an invitation to be given to the appellant. Such invitation had been provided, and the decision not to attend resulted from the dishonest conduct of the agent. However, such conduct did not corrupt the decision or the statutory process. The majority considered that authorities which have upheld challenges to orders made against a party by a court in their absence through no fault of their own, such as Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 and Cameron v Cole [1944] HCA 5 ; (1944) 68 CLR 571, are distinguishable because of the absence of the statutory scheme provided by the Act.
Case: VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 ; (2002) 121 FCR 100
Outcome: distinguished
In SCAR the Full Court recognised that under certain circumstances the invitation process prescribed by s 425 of the Act may not have been fulfilled (see also SZFML ). However, in SCAR the Full Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill. In Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322, the Tribunal provided a translator who was unable to speak the appellant's language. In VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 ; (2002) 121 FCR 100, the appellant was misled by statements of the Tribunal. In Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 359, the Tribunal declined to grant an adjournment of the hearing, knowing that the appellant was incapacitated. Although the requirement of s 425 had been followed, the invitation was held to be 'an empty gesture and a denial of procedural fairness'(see Hely J at 366 [36]).
Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: followed
the reasons given in [12]-[19], the claims made pursuant to the Workplace Relations Act are within the jurisdiction of the Court and make the proceeding one of a kind mentioned in O 8 r 2 of the Federal Court Rules . As I have said in [11], the claim made pursuant to s 52 of the Trade Practices Act is also within the jurisdiction of the Court. That claim also contributes to the proceeding being of a kind mentioned in O 8 r 2. The claims in contract are within the jurisdiction conferred on the Court by s 32(1) of the Federal Court Act in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. Alternatively, because all of the claims made in the proceeding arise out of the employment of the applicant by the respondent, there is a sufficient substratum of facts common to all the claims to bring the claims in contract within the accrued jurisdiction of the Court. See Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 607 per Mason, Murphy, Brennan and Deane JJ. The requirements of O 8 r 3(2)(a) and (b) of the Federal Court Rules are therefore satisfied. A prima facie case for the relief sought
Case: State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102
Outcome: followed
the purpose of determining whether the requirement in O 8 r 3(2)(c) has been satisfied, a prima facie case exists if, on the material before the Court, including any inferences that might be drawn from that material, findings of fact would be made that would be sufficient to make out all of the elements of the claim concerned if those findings of fact were made at the end of the trial. See State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110.
Case: Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
on the statutory entitlements to annual leave, I am of the view that a prima facie case is made out for the claims in paras 2 and 3 of the amended application. If it were necessary to be so, I would not be so satisfied with respect to the claims based on express or implied terms of the contract. In the case of express terms, there is no evidence of outstanding annual leave at 1 October 2007. The difficulty of converting express statutory entitlements into implied terms of contracts of employment was the subject of considerable discussion in Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 , especially at 418-423 per Brennan CJ, Dawson and Toohey JJ and 440-453 per McHugh and Gummow JJ. It is unlikely that the statutory entitlements became terms of the contract of employment in the present case. This issue need not be pursued any further, however, because a prima facie case with respect to the relief claimed in paras 2 and 3 of the amended application exists on the basis that the applicant has enforceable statutory entitlements. Breach of contract The remainder of the relief sought in the amended application, in the six subparagraphs of para 4, the two subparagraphs of para 5, and para 6, concerns claims arising out of the contract between the applicant and the respondent. In para 4(a) of the amended application, a claim is made for damages for breach of contract, pursuant to para 38 of the amended statement of claim. Paragraph 38 contains an allegation that the applicant has suffered loss and damage, pursuant to a breach of contract referred to in para 37 of the amended statement of claim. The breach referred to in para 37 was termination of the contract of employment (alleged in para 36 to have occurred on or around 1 October 2007), in breach of a term pleaded in para 32 of the amended statement of claim. In para 32, it is alleged that the applicant's assignment to Australia "was extended on a secure, long-term ongoing basis" from (at the latest) 23 September 2003. The particulars to para 32 state that the assignment was extended in accordance with para 54A of the amended statement of claim. As I have said in [26] above, para 54A alleges that the respondent represented to the applicant, between 6 February 2002 and 23 May 2007, that his assignment to Australia was long-term and secure. I have already set out the particulars to para 54A in [26] above. Those particulars merely contain allegations of representations alleged to have been made to the applicant. Any notion that there was a variation of the contract, so as to incorporate a term to the effect that the assignment to Australia was extended on a secure long-term basis comes from para 33 or para 34 of the amended statement of claim. The former of these alleges that the Australian assignment contract was varied and that the terms of the variation became terms of that contract. The latter alleges that the Australian assignment contract as varied replaced the original contract.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 78 ALJR 992
Outcome: applied
way in which this ground was developed in the oral submissions of the Appellant did not amount to a challenge that the conduct of the Tribunal in the proceedings was such as not to have given him a hearing according to law. Neither, in the way in which the argument developed, was there a contention that the Tribunal's conduct in the course of the hearing, arising from the way in which questions were asked, gave rise to a reasonable apprehension of bias on the part of the Tribunal. An argument that the Tribunal Member had not asked 'proper questions' seems to have been developed also in the Federal Magistrates Court. Insofar as, in that court, the argument had the flavour of inviting the Tribunal to make its own inquiries and a supposed error on the part of the Tribunal in not so doing, the learned Federal Magistrate correctly apprehended, having regard to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 78 ALJR 992 , that the Tribunal is under no obligation to make its own inquiries. The Appellant made reference to a question which the Tribunal had asked him in relation to his travel to Japan. It seems though that his complaint is not so much with the question as with the use the Tribunal came to make of the answer that he provided and, for that matter, of the fact of his travel and being able to travel. As developed in oral submissions, there is no substance in ground 1 of the appeal grounds. Insofar as there is complaint about the use made by the Tribunal of the Appellant's answers, that use and whether or not the Magistrate erred in failing to find any error is best considered in the context of ground 3. Ground 2, alleged denial of procedural fairness
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: applied
nature of the obligation cast on the tribunal by s 424A was definitively considered in the joint judgment of Gleeson CJ and Gummow, Callinan, Hayden and Crennan JJ in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , especially at paras 15, 17 and 18. Since then s 424A(3) has been amended so as to insert paragraph (ba) into that subsection. It is in that amended form that s 424A had application to the proceedings before the Tribunal. Having regard to the exceptions for which s 424A(3) provides, it may very well be that the Tribunal, insofar as it was thought that s 424A provided an obligation for the dispatch of the letter of 15 October 2007, went further than strictly the statute required. That though is hardly a basis for criticism of the Tribunal. Further, insofar as the letter sought information from the Appellant, s 424(2) provided ample authority for the Tribunal so doing. Judging by the course of proceedings at the hearing the Tribunal conducted, insofar as the same is revealed in the Tribunal's reasons, it seems that the Tribunal gave to the Appellant a fair opportunity to comment, in the course of his appearance and evidence before the Tribunal, about the concern articulated in the letter of 15 October 2007. I am therefore satisfied that there is no substance in the procedural fairness challenge, as it has been termed. Ground 3, unreasonableness It is necessary to say something of the basis upon which the Appellant made his claim for a protection visa. His claim was based on the allegation that he was a Falun Gong practitioner and one of the leaders of the Falun Gong organisations in his home city. In amplification of that claim he stated that he had been detained by the police for almost six months, during which time, so he stated, he was tortured and forced to declare separation from the Falun Gong movement. His claim was that he feared that this particular detention and torture would happen again if he continued to participate in Falun Gong activities and demonstrations. He stated that he had, through the use of his friends in the government, applied for and obtained a passport and a visa. During the course of the hearing before the Tribunal, the Appellant also claimed that he had been part of the 1989 activities in Tiananmen Square and that he was a pro-democracy advocate.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 , at page 274 and 275, in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, the following observations were made in relation to the Migration Act as it had come to be amended and in the form in which in substance it presently remains, so far as the granting of a protection visa is concerned: The grafting of what might be seen as the Chan test on to the new statutory power to make refugee status determinations reveals the true nature of the Minister's decision-making function in the present case. That is that if the Minister is satisfied that a person has a genuine fear, founded upon a real risk of persecution, then the Minister may determine in writing that the person is a refugee. A condition of determination is the Minister's satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee but rather it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. That is the 'decision' from which provision is made by the Act. As was observed in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. In that case, at 275 to 276, as in subsequent cases at ultimate appellate level, attention was drawn in relation to the reviewing of satisfaction-based decisions, to observations made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119. In the course of those observations Gibbs J had stated that the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. In Eshetu's case, at page 654 para 137, having referred to the observations of Gibbs J in Buck v Bavone , Gummow J added: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1998-99) 197 CLR 611
Outcome: followed
in time but to similar effect are observations made concerning s 36 and s 65 of the Migration Act by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1998-99) 197 CLR 611 at 647 paragraph 119, where his Honour observed, making reference to s 65A(ii) in so doing: The reference in subparagraph (a)(ii) to other criteria drew in for the present case section 36. It will be noted that section 65(1) imposed on the Minister an obligation to grant or to refuse to grant a visa, rather than a power to be exercised at discretion. The Minister's satisfaction was an anterior matter, being a component of the condition precedent to the discharge of the obligation to grant or refuse the visa. The Federal Magistrates Court was therefore conducting the judicial review of a decision based on a state of satisfaction. The Tribunal, standing as it did in the place of the Minister, was empowered, all other things being equal, to grant a protection visa if the Tribunal was satisfied that the Appellant was a non-citizen in Australia to whom the Tribunal was satisfied Australia had protection obligations under the Refugee Convention as amended by the Refugee Protocol, see s 36(2)(a) of the Migration Act . It is, therefore, by no means impossible to conceive of a basis upon which a satisfaction-based decision of the kind committed to the Tribunal was amenable to judicial review. Ground 3, as I understand it, seeks to engage just such a ground or more accurately to allege that the Federal Magistrates Court ought to have found such a ground to have been made out. As the statement made by Gummow J in Eshetu highlights, however, where the satisfaction-based question is one upon which reasonable minds might reasonably differ, it is very difficult indeed to challenge a satisfaction-based decision on an unreasonableness ground. Further, as has been often observed in relation to appeals of this kind, findings of credibility are par excellence findings of fact. They are findings uniquely within the province of the Tribunal to make. Of course, if there is some element of illogicality in the finding, then jurisdictional error might be shown. The difficulty is that in this case the findings which the Tribunal has made are findings which, however much and however genuinely the Appellant disagrees with them, are findings that it was reasonably open for the Tribunal to make. In those circumstances it is necessary for judicial officers conducting judicial review in the Federal Magistrates Court, or those in this Court hearing appeals, to remind themselves of the limits of the role consigned to the courts in judicial review.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
was observed in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. In that case, at 275 to 276, as in subsequent cases at ultimate appellate level, attention was drawn in relation to the reviewing of satisfaction-based decisions, to observations made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119. In the course of those observations Gibbs J had stated that the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. In Eshetu's case, at page 654 para 137, having referred to the observations of Gibbs J in Buck v Bavone , Gummow J added: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: Attorney General (New South Wales) v Quin (1990) 170 CLR 1
Outcome: cited
limits were eloquently and definitely stated by Brennan J, as his Honour then was, in Attorney General (New South Wales) v Quin (1990) 170 CLR 1 at 35 to 36. In short, a principled restraint is called for, lest judicial review lose it legitimacy and descend impermissibly into a review on the merits. The Federal Magistrate, in my opinion, properly apprehended those limits in deciding that the conclusions of fact reached by the Tribunal were reasonably open, and having so done, in finding that a reasonableness based challenge was not made out. Ground 3 must therefore fail. In light of that, the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 November 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 12 November 2008 Date of Judgment: 12 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1734.html
Case: Raikua v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCA 370 , 158 FCR 510
Outcome: followed
In the present Application it is considered that leave to appeal should be refused. The decision of the Federal Magistrate was correct. There is no relevant distinction between either ss 351 or 417 and no distinction between the present case and the decision in Raikua v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCA 370 , 158 FCR 510. It is considered that the application has no prospects of success for the reasons given in SZJLM v Minister for Immigration &amp; Citizenship [2008] FCA 300.
Case: SZJLM v Minister for Immigration &amp; Citizenship [2008] FCA 300
Outcome: cited
In the present Application it is considered that leave to appeal should be refused. The decision of the Federal Magistrate was correct. There is no relevant distinction between either ss 351 or 417 and no distinction between the present case and the decision in Raikua v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCA 370 , 158 FCR 510. It is considered that the application has no prospects of success for the reasons given in SZJLM v Minister for Immigration &amp; Citizenship [2008] FCA 300.