mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 [2003] FCAFC 231 ; , 77 ALD 402
Outcome: cited
some faulty or irrational finding of fact does not establish an error of law, let alone jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed) there observed at 356 (emphasis in original): Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference &#8212; in other words, the particular inference is reasonably open &#8212; even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. Findings which are apparently inconsistent may, however, serve to sound a " warning note " such that a decision may be more carefully scrutinised: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411. Black CJ, von Doussa and Carr JJ there observed: [25] ... although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn. Likewise, want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker. But where different conclusions are reasonably open on the facts, it is the Tribunal that is entrusted with the task of making those findings of fact which it considers appropriate: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 , 197 CLR 611. Gummow J there observed: [137] ... 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. See also Gleeson CJ and Toohey J at [39] to [46], 197 CLR at 626 to 628. A finding that is a crucial step in the ultimate conclusion reached by a Tribunal for which there is no evidence may, however, constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] , [2003] FCAFC 231 ; 77 ALD 402 at 407 per Mansfield, Selway and Bennett JJ, citing Australian Broadcasting Tribunal v Bond , supra . " [O]ne illogical aspect of fact finding in a wider scheme of factual analysis " may not expose jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 at [11] , [2006] FCA 265 ; 90 ALD 614 at 618 per Allsop J.
Case: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 , 104 ALD 22
Outcome: cited
when entertaining an appeal from the Migration Review Tribunal, in Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 Moore, North and Emmett JJ concluded at [24] that "... the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant ... ". It has, however, further been recognised that a failure on the part of the Tribunal to make inquiries may constitute jurisdictional error: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] to [63], 161 FCR 151 at 172 to 174 per Kenny J. Applied: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [19] , [2008] FCA 1372 ; 104 ALD 22 at 25 to 26.
Case: SZJXW v Minister for Immigration and Citizenship [2008] FCA 143
Outcome: cited
other cases an order has been made appointing one or other of the parents of an infant as a next friend and further orders made dispensing with compliance with the " formal steps " otherwise prescribed by O 43: e.g. SZJXW v Minister for Immigration and Citizenship [2008] FCA 143. Notwithstanding the position the Respondent Minister ultimately adopted, namely that no order was sought, his concern as initially expressed should prevail. There should be no uncertainty that the resolution of the present Appeal binds the Appellants. Although an order should not necessarily be made simply " to avoid doubt ", there should be no uncertainty as to the conclusiveness of a decision of this Court. An order should thus be made appointing the father as the Appellants' tutor. Compliance with the procedural requirements imposed by O 43 before such an order may be made is dispensed with pursuant to O 1 r 8 of the Federal Court Rules . Insistence upon compliance with those " formal steps " in circumstances where there is no reason to question the competence of the father to protect the interests of his two sons and where the father is unrepresented would place an unnecessary obstacle in the path of the father advancing the case on behalf of his family. His participation in the Appeal has been taken as implicit consent to his appointment as the tutor for his sons. The first Ground of Appeal asserts a denial of " Procedural Fairness " initially by reference to a failure on the part of the Tribunal to carry out its functions in an " Inquisitorial Manner ". This failure is said to emerge from the statement of the Tribunal that it had " ' ... considered all of the evidence before it' whereas it made a contrary finding ".
Case: SZNCT &amp; SZNCU v Minister for Immigration and Citizenship [2009] FMCA 233
Outcome: affirmed
were thereafter filed with the Federal Magistrates Court seeking review of the Tribunal decision. That Court heard both applications together and dismissed both applications: SZNCT &amp; SZNCU v Minister for Immigration and Citizenship [2009] FMCA 233. A Notice of Appeal was filed in this Court on 9 April 2009. The Grounds of Appeal there set out are as follows (without alteration): GROUNDS OF APPEAL 1. The Learned Federal Magistrate was in error in not determining that the Second Respondent had failed to accord "Procedural Fairness" to the Applicant because of: 1.1 its failure to carry out its role in an Inquisitorial Manner when it said "Having considered all of the evidence before it" whereas it made a contrary finding. 1.2 the weight it gave to the claims of the Applicant's mother in her application for a protection visa in 2005 notwithstanding an honest explanation of these claims by both of the Applicant's parents. 2. The Learned Federal Magistrate was in error in not determining that the Second Respondent acted in a "manifestly unreasonable" manner towards the Applicant when dealing with the Applicant's claims because of it's failure to consider the claims in accordance with the Criteria in Article 1(A)(2) of the 1951 UN Convention relating to Status of Refugee. 3. The Learned Federal Magistrate was in error in not determining that the Second Respondent fell into jurisdictional error in failing to request more information regarding the applicants' father's victimisation for his political affiliations and activities in the SDL letter from the SDL official itself. The Notice of Appeal was signed by the Appellants' father, purportedly as " guardian ". A statement of " Contentions of Fact &amp; Law " was filed on 30 July 2009 and it, too, had been signed by the father. The Appellants' father appeared before this Court on 6 August 2009. The Appellants were otherwise unrepresented. There was no interpreter to assist the father but he nevertheless wished for the Appeal to proceed. A copy of a written Outline of Submissions filed on behalf of the Respondent Minister had apparently not been previously seen by the father and there was thus a short adjournment to allow the father the opportunity to read those submissions. The appeal then proceeded.
Case: X v Minister for Immigration and Multicultural Affairs [1999] FCA 995 , 92 FCR 524
Outcome: cited
written submission was advanced on behalf of the Minister as to whether or not a proceeding such as the present could be brought by the Appellants without the appointment of a guardian or tutor: see X v Minister for Immigration and Multicultural Affairs [1999] FCA 995 , 92 FCR 524 ; Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 at [106] , [2002] FCAFC 194 ; 122 FCR 29 at 50. The concern of the Respondent Minister may nevertheless be accepted. In the absence of an order being made under O 43 of the Federal Court Rules appointing a " tutor ", it has been said that the resolution of an appeal may not bind the Appellants: SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 , 126 FCR 552.
Case: R v Ellis [2003] NSWCCA 319 ; (2003) 58 NSWLR 700
Outcome: followed
The Australian standard should, I think, be regarded as set by the Evidence Act 1995 (Cth) although Victoria and Queensland have each adopted their own and different approaches to the matter. Section 101 of that Act requires that 'tendency' or 'coincidence' evidence cannot be used against a criminal defendant 'unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant'. That is a less strict test for its admissibility than the Australian common law, which required that there be no rational explanation for the evidence except the guilt of the accused: R v Ellis [2003] NSWCCA 319 ; (2003) 58 NSWLR 700 at [95] . Now, a balancing exercise is required in each case: ibid . A serious possibility of concoction or unconscious contamination would still appear to be perfectly properly to be weighed in that balance. As McHugh J said in Pfennig v R [1995] HCA 7 ; (1995) 182 CLR 461 (at 529-530) (in dissent, but now, in my opinion, allowably as a useful guide see W v R [2001] FCA 1648 ; (2001) 115 FCR 41 at [102] ): 'Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. ... If the risk of an unfair trial is very high, the probative value of evidence disclosing criminal propensity may need to be so cogent that it makes the guilt of the accused a virtual certainty. In cases where the risk of an unfair trial is very small, however, the evidence may be admitted although it is merely probative of the accused's guilt. Each case turns on its own facts. But the judge must bear in mind that the admission of evidence revealing criminal propensity is exceptional. Further, as Lord Cross pointed out in Boardman , while there remains a general rule against the admission of other acts of misconduct, "the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence" . Thus, where the prosecution case depends entirely on propensity reasoning, the evidence will need to be very cogent to be admitted. When propensity reasoning is relied upon, the danger is high that the tribunal will convict simply because of the accused's propensity instead of using it as an evidentiary factor. Consequently, in such a case the evidence will need to be so cogent that, when related to the other evidence, there is no rational explanation of the prosecution case that is consistent with the innocence of the accused. However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable propensity of the accused, must always meet this high standard.'
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: applied
In any event, when one has regard to the terms of the observations made by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 especially at paras 15, 17 and 18 and to the exceptions for which s 424A(3) provides, it seems to me that the Tribunal was not under any obligation derived from s 424A , to invite the Appellants to comment upon information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. Rather, the letter is one which might fairly be categorised as an invitation given, pursuant to s 424(2) of the Migration Act , to give to the Tribunal additional information. 12 However one approaches the contention that the Tribunal has breached s 424A , it seems to me that it must fail. 13 This was not in terms, a ground pursued for the Federal Magistrate. Again, it was not the subject of any written submission on behalf of the Appellants. Further, when invited to expand in oral submissions upon the ground, the male appellant replied, "No". One way of dealing with this ground in those circumstances, would be to treat it as so devoid of particularity as not to amount to a meaningful ground of appeal. Once again, and with respect properly, the Minister sought instead to highlight the way in which the Tribunal had dealt with the question of whether satisfaction of the male Appellant's and hence the female Appellant's status as a refugee had been dealt with in the Tribunal. In effect, the Tribunal's reasons were subjected to a critical analysis in this regard. It appears that this course may also have been followed before the Federal Magistrates Court. 21 This finding was, in my opinion, one reasonably open to the Tribunal. In light of that finding a very real question, indeed, would be raised were there otherwise to be any merit in the grounds appeal, as to whether relief ought to be denied as a matter of discretion, on the basis of futility. See SZBYR at 1197 1198, paras 27 - 29. 22 For these reasons then, the appeal is 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: 13 November 2008 Counsel for the Appellants: The Appellant appeared in person Counsel for the Respondents: Mr O'Donnell Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 11 November 2008 Date of Judgment: 11 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1707.html
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
Read in isolation, and if one were to regard the Tribunal as having a view that satisfaction as to refugee status could only be achieved in the event of a threat to life, there would be very serious concern indeed that the Tribunal had misunderstood the basis upon which satisfaction as to a person's being a person to whom Australia owed protection obligations existed. So reading a Tribunal or, for that matter, any administrator's reasons is something one must not do as a judicial officer. As Brennan CJ and Toohey, McHugh and Gummow JJ, remarked in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at page 272, the proposition that a court should not be concerned with looseness in the language nor with the unhappy phrasing of the reasons an administrative decision maker is well settled: They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon overzealous judicial reviews by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 16 It is always important to read a Tribunal's reasons in the context in which they came to be given. In this case and in this context, it must be recalled that the reasons of the Tribunal are responsive to a claim for a protection visa put on the basis that the male Appellant's life was at risk. There are other passages in the Tribunal's reasons also found at page 214 of the Appeal Book which serve to demonstrate that the Tribunal was under no misapprehension that a protection obligation under the Convention could only arise if an Applicant's life were at risk. Without intending to be exhaustive, I cite the following passages: On the basis of the credible evidence before it, the Tribunal cannot be satisfied that any harm experienced by the applicant [the male appellant] at this time were sufficiently serious as to constitute persecution. Moreover, the Tribunal does not accept that the applicant experienced ongoing threats to his life or any other form of persecution on a continuing basis after the elections and up until the time of his departure in April 2007. Nor does it accept that he would be at risk of ongoing harm if he were to return to India now or in the reasonably foreseeable future. 17 Then in the sentence which immediately follows, the one which I have earlier in isolation cited, one sees the following: Nor is there any evidence to suggest that the applicant would face harm amounting to persecution simply as a member of the Shiv Sena or the VHP without more.
Case: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405
Outcome: cited
In reaching these conclusions, the Tribunal has made a value judgment based on its assessment of the credibility of the claim for a protection visa advanced by the appellants. As it happens, and having regard to inconsistencies which it highlighted, the Tribunal did not accept the claim advanced. The Tribunal's reasons for so doing are logical. As the learned Federal Magistrate observed at para 30 of her Honour's reasons for judgment by reference to what had been said in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at [67] , credibility is a matter for the Tribunal "par excellence", and the Tribunal's findings were open to it for the reasons it gave on the material before it. 19 There is then, in my opinion, no substance in ground 2. 20 These conclusions are themselves enough to dispose of the appeal. However, it is desirable that attention be drawn to a further passage which appears in the Tribunal's reasons at Appeal Book page 214. The Tribunal there states: The Tribunal does not accept the applicant's I interpolate, the male Appellant's claim that the police refused to protect him because of the influence of his enemy. The independent information which the Tribunal accepts, overwhelmingly supports the conclusion that the police in Gujarat favour the BJP. The Tribunal is satisfied that if the applicant had, in the past, been unable to obtain help from the police, or from his party leaders, it is because any difficulties he had were too trivial. The Tribunal is satisfied that were he to suffer serious harm, or threat of harm amounting to persecution, the state authorities would provide effective protection.
Case: Allphones Retail Pty Limited v Australian Competition and Consumer Commission [2009] FCA 980
Outcome: cited
circumstances which I have described in two previous judgments delivered by me ( Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ; (2009) 253 ALR 324 , [2009] ATPR 42-274 and Allphones Retail Pty Limited v Australian Competition and Consumer Commission [2009] FCA 980) , on 29 August 2008, by Notice of Dispute dated that day ( the Notice of Dispute ), Allphones commenced a dispute resolution process with approximately ninety of its franchisees with whom it was then in dispute.
Case: Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240
Outcome: cited
Notice of Dispute expressly referred to proceedings NSD 408 of 2008 and to the Hoy Mobile proceedings which had been decided by Rares J in May 2008 (as to which see Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240). In the Notice of Dispute, Allphones also mentioned the prospect that the ACCC might bring proceedings against it pursuant to s 87(1B) of the Trade Practices Act 1974 (Cth) ( the Act ). Those foreshadowed proceedings have now been commenced (NSD 869 of 2009). Allphones made quite clear in the Notice of Dispute that it was seeking to resolve all of the issues raised in all of the proceedings to which it made reference in that document. In the Notice of Dispute, Allphones said that the dispute resolution process was being undertaken pursuant to cl 24 of its old Franchise Agreement and Pt 4 of the Franchising Code of Conduct. Allphones proposed a process of negotiation followed by a mediation, if necessary. At the end of cl 5 of the Notice of Dispute, Allphones said: Allphones will invite the ACCC to participate in the mediation. If the ACCC chooses not to do so, Allphones will keep the ACCC informed of the progress of the mediation. Allphones proposed that Mr Fitzgerald QC be appointed to act as the mediator should mediation be required.
Case: Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ; (2009) 253 ALR 324 , [2009] ATPR 42-274
Outcome: cited
circumstances which I have described in two previous judgments delivered by me ( Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ; (2009) 253 ALR 324 , [2009] ATPR 42-274 and Allphones Retail Pty Limited v Australian Competition and Consumer Commission [2009] FCA 980) , on 29 August 2008, by Notice of Dispute dated that day ( the Notice of Dispute ), Allphones commenced a dispute resolution process with approximately ninety of its franchisees with whom it was then in dispute. In Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17 ; 253 ALR 324 , [2009] ATPR 42-274, I dealt with an application for interlocutory injunctive relief made by the ACCC against Allphones in proceedings NSD 1567 of 2008. At [32] [58] of that judgment, I described certain events leading up to the service of the Notice of Dispute. That description was based upon the evidence before me for the purposes of the application with which I was then dealing and, to some extent, may be controversial. But, allowing for these limitations, the description which I gave in those paragraphs of that judgment is a useful starting point for placing the Notice of Dispute into an appropriate context. Accordingly, I incorporate those paragraphs into these Reasons in order to provide some detail of the context in which the Notice of Dispute came to be issued. The Notice of Dispute was issued pursuant to the Franchising Code of Conduct and the contractual arrangements then in existence between Allphones and the franchisees upon whom it was served ( the eligible franchisees ). It was served upon all of Allphones existing franchisees who were not operating under its new Franchise Agreement or who had not released Allphones from past breaches of its old Franchise Agreement. The sending of the Notice of Dispute commenced a dispute resolution process in accordance with the provisions of the Franchising Code of Conduct and the contractual arrangements between Allphones and the eligible franchisees. The dispute resolution process commenced in this fashion was, if necessary, intended to culminate in a mediation. In the Notice of Dispute, Allphones raised ten issues to be addressed by negotiation and mediation with the eligible franchisees. The main issues may be conveniently grouped into four broad categories: