mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Outcome: cited
I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238.
Case: Devries v Australian National Railways Commission [1993] HCA 78 ; (1993) 177 CLR 472
Outcome: followed
In my view, the Federal Magistrate was entitled to reach the view that he did, and the finding was made after consideration of the cross-examination of the appellant and should not be disturbed: see generally, Abalos v Australian Postal Commission [1990] HCA 47 ; (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission [1993] HCA 78 ; (1993) 177 CLR 472 ; Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [26] .
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: followed
In my view, the Federal Magistrate was entitled to reach the view that he did, and the finding was made after consideration of the cross-examination of the appellant and should not be disturbed: see generally, Abalos v Australian Postal Commission [1990] HCA 47 ; (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission [1993] HCA 78 ; (1993) 177 CLR 472 ; Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [26] .
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365
Outcome: cited
I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572
Outcome: cited
I assume that any requirement for an invitation be 'real and meaningful' is a necessary precondition to the exercise of the Tribunal's decision making power. The content of the s 425 invitation was explained by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572 , 585 at [58] to not simply involve common law procedural fairness: The affording to an applicant of an opportunity to attend a hearing and the duty to consider what is put at the hearing are elements of the review mandated by Div 4 of Pt 7. If a hearing is not afforded where it should be provided, then the duty to conduct a review is not fulfilled and the decision in such a case is infected by jurisdictional error. This is not simply a matter of procedural fairness at common law. A necessary condition for the decision-making power, mandated by the statute, will not have been satisfied. (Emphasis added)
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, dismissed the application. His Honour found that the Tribunal's decision record revealed that the particular social or ethnic group to which the appellant claimed she belonged, and the related persecution alleged by the appellant, were both identified by the Tribunal. The Tribunal was under no obligation to make findings of fact: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16] . Consequently, the fact that the Tribunal did not make findings on the matters asserted by the appellant to be important did not amount to jurisdictional error. Further, whether or not the Thai Yai are persecuted in the fashion asserted by the appellant was irrelevant unless the Tribunal had accepted the applicant's personal claims to fear persecution, and to fear that persecution by reason of her Thai Yai ethnicity.
Case: NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
Outcome: cited
I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238. 29 The circumstances for my consideration are not dissimilar to the circumstances that arose in NALQ [2004] FCAFC 121 and the principles discussed therein (at [35]-[36]). As in that case, the failure to reschedule and hear the matter after giving the appellant the opportunity to provide material to the Tribunal, arose from the appellant's failure to provide sufficient information to the Tribunal to explain her inability to attend on the original hearing date. As I have indicated, the appellant was advised on 29 May 2007 (after the original scheduled hearing she did not attend) that she should provide any further information she wished the Tribunal to consider, including any explanation of why she did not attend the original scheduled hearing date. 30 In these circumstances, the focus must be upon the material the Tribunal had before it in deciding on 31 May 2007 whether to proceed under s 426A or to reschedule: see, eg, NALQ [2004] FCAFC 121 , [35]-[36] and SZBQG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1858 , [13]-[15].
Case: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 ; (2006) 152 FCR 592
Outcome: cited
In my view, the Tribunal's decision to proceed under s 426A was not capricious, nor did it fail to take into account the material submitted to it: see NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 ; (2006) 152 FCR 592 , 598 at [21]. I do not regard it as incumbent on the Tribunal in this case to inform the appellant of the reason for not rescheduling the hearing, or allowing the appellant the opportunity to present argument on whether the Tribunal should proceed under s 426A , prior to the Tribunal so deciding. 36 The Tribunal, having been apprised of the appellant's position on the original scheduled hearing day, considered a rescheduling, but ultimately decided to proceed with its decision. It did so in light of its rejection of the appellant's explanation of her inability to attend on the original scheduled hearing day and due to the fact that no further information was forthcoming. Nothing in the Tribunal's approach indicated that it failed to provide the appellant with an opportunity to be heard, once apprised of the situation. The appellant was given all the opportunity to be heard as is required by the Act, and the appellant received (if at all required) a real and meaningful invitation prior to the operative decision made by the Tribunal on 31 May 2007.
Case: SZBQG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1858
Outcome: cited
In these circumstances, the focus must be upon the material the Tribunal had before it in deciding on 31 May 2007 whether to proceed under s 426A or to reschedule: see, eg, NALQ [2004] FCAFC 121 , [35]-[36] and SZBQG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1858 , [13]-[15].
Case: SZGWN v Minister for Immigration and Citizenship [2008] FCA 238
Outcome: cited
I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238.
Case: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138
Outcome: cited
Recently, Gray J (with whom Gyles J agreed) in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 confirmed that, despite the codification of procedural fairness rules by virtue of s 422B of the Act, the process rights contained in Div 4 (which include s 425 of the Act) remain important to the exercise of the Tribunal's substantive powers. His Honour said at [5]: Section 425 , like other provisions found in Div 4 of Pt VII , represents Parliament's expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness. If this proposition were ever doubted, it is now confirmed by the presence of s 422B , enacted subsequently to most of the other provisions in Div 4. Like the rules of procedural fairness in other contexts, the rights given to an applicant by Div 4 are rights relating to the process by which decisions are made, rather than to the substantive content of those decisions. To say this, however, is not to diminish the importance of those rights. It has long been recognised that a statutory power, the exercise of which may affect adversely a person's interests, is impliedly subject to a requirement that the decision-maker afford procedural fairness to that person. The fact that, in the context of the Tribunal's task of reviewing decisions to refuse protection visas, Parliament has chosen to make the exercise of the Tribunal's substantive powers depend expressly upon the process rights contained in Div 4, and to spell out for that purpose what constitutes procedural fairness, does not diminish the importance of those process rights. Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1) , will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [37] .
Case: SZJZY v Minister for Immigration and Citizenship [2008] FCA 280
Outcome: cited
I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238.
Case: SZLTI v Minister for Immigration and Citizenship [2008] FCA 1274
Outcome: cited
Assuming there to be an evidentiary onus on the appellant to prove the reason for the non-attendance, I do not accept that this could only be proved before the Federal Magistrate by the provision of medical evidence to the Court. I do not read the comments of Gilmour J in SZLTI v Minister for Immigration and Citizenship [2008] FCA 1274 at [18] and SZMBU v Minister for Immigration and Citizenship [2008] FCA 1290 at [20] as standing for any contrary proposition.
Case: SZMBU v Minister for Immigration and Citizenship [2008] FCA 1290
Outcome: cited
Assuming there to be an evidentiary onus on the appellant to prove the reason for the non-attendance, I do not accept that this could only be proved before the Federal Magistrate by the provision of medical evidence to the Court. I do not read the comments of Gilmour J in SZLTI v Minister for Immigration and Citizenship [2008] FCA 1274 at [18] and SZMBU v Minister for Immigration and Citizenship [2008] FCA 1290 at [20] as standing for any contrary proposition.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: referred to
The test to be applied for an extension of time within which to appeal was discussed in Jess v Scott (1986) 12 FCR 187 at 195, and, in a different legislative context, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. I refer also to Parker v The Queen [2002] FCAFC 133. In Hunter Valley Developments Pty Ltd v Cohen , Wilcox J identified six relevant matters at 348-9. I have had regard to those matters. It must be said immediately the period of delay in this case is very short and, subject to what I am about to say, no injustice will be occasioned to the first respondent if an extension of time is granted. It is not easy to understand the applicant's explanation for the delay but in view of the language difficulties I am not prepared to say that his explanation is an unsatisfactory one. In those circumstances, it will often be appropriate to extend time. However, the matter which is fatal to the application is the fact that the applicant has been unable to identify any reasonable prospect of success in the appeal: Jeffers v The Queen [1993] HCA 11 ; (1993) 67 ALJR 288.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: referred to
The test to be applied for an extension of time within which to appeal was discussed in Jess v Scott (1986) 12 FCR 187 at 195, and, in a different legislative context, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. I refer also to Parker v The Queen [2002] FCAFC 133. In Hunter Valley Developments Pty Ltd v Cohen , Wilcox J identified six relevant matters at 348-9. I have had regard to those matters. It must be said immediately the period of delay in this case is very short and, subject to what I am about to say, no injustice will be occasioned to the first respondent if an extension of time is granted. It is not easy to understand the applicant's explanation for the delay but in view of the language difficulties I am not prepared to say that his explanation is an unsatisfactory one. In those circumstances, it will often be appropriate to extend time. However, the matter which is fatal to the application is the fact that the applicant has been unable to identify any reasonable prospect of success in the appeal: Jeffers v The Queen [1993] HCA 11 ; (1993) 67 ALJR 288.
Case: Parker v The Queen [2002] FCAFC 133
Outcome: referred to
The test to be applied for an extension of time within which to appeal was discussed in Jess v Scott (1986) 12 FCR 187 at 195, and, in a different legislative context, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. I refer also to Parker v The Queen [2002] FCAFC 133. In Hunter Valley Developments Pty Ltd v Cohen , Wilcox J identified six relevant matters at 348-9. I have had regard to those matters. It must be said immediately the period of delay in this case is very short and, subject to what I am about to say, no injustice will be occasioned to the first respondent if an extension of time is granted. It is not easy to understand the applicant's explanation for the delay but in view of the language difficulties I am not prepared to say that his explanation is an unsatisfactory one. In those circumstances, it will often be appropriate to extend time. However, the matter which is fatal to the application is the fact that the applicant has been unable to identify any reasonable prospect of success in the appeal: Jeffers v The Queen [1993] HCA 11 ; (1993) 67 ALJR 288.
Case: Jeffers v The Queen [1993] HCA 11 ; (1993) 67 ALJR 288
Outcome: referred to
The test to be applied for an extension of time within which to appeal was discussed in Jess v Scott (1986) 12 FCR 187 at 195, and, in a different legislative context, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. I refer also to Parker v The Queen [2002] FCAFC 133. In Hunter Valley Developments Pty Ltd v Cohen , Wilcox J identified six relevant matters at 348-9. I have had regard to those matters. It must be said immediately the period of delay in this case is very short and, subject to what I am about to say, no injustice will be occasioned to the first respondent if an extension of time is granted. It is not easy to understand the applicant's explanation for the delay but in view of the language difficulties I am not prepared to say that his explanation is an unsatisfactory one. In those circumstances, it will often be appropriate to extend time. However, the matter which is fatal to the application is the fact that the applicant has been unable to identify any reasonable prospect of success in the appeal: Jeffers v The Queen [1993] HCA 11 ; (1993) 67 ALJR 288.
Case: Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362
Outcome: referred to
Wilcox J revisited his earlier comments in Prasad in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 and said: "It will be a relatively rare case in which a statutory decision is vitiated because of a decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored".
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: referred to
The observations of Black CJ in Randhawa (with whom Whitlam J agreed), reinforced by those of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 at [19] , establish that an applicant must establish that he or she cannot reasonably be expected to relocate to another area of their country of nationality. Yet the difficulties faced by an applicant in demonstrating that there is no other area to which they can reasonably be expected to relocate are often formidable. There are at least two main sources of difficulty. Firstly, the issue of relocation is almost always raised by the Tribunal, not the applicant, and raised at the hearing. The significance of this is particularly acute in cases where the applicant is not represented before the Tribunal, although that is not the present case. Secondly, the issue is necessarily speculative. This second issue raises the importance of the Tribunal properly evaluating what the asylum seeker says about relocating. This issue requires consideration of not only whether a safe haven exists in another part of the country. Proper consideration must also be given to the issue of relocation as a practical matter, by considering whether it would be reasonable to expect the person to relocate in view of all the "practical realities" facing that person.
Case: Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562
Outcome: cited
applicant sought to bolster its argument that the phrase 'promotes or incites' requires regard to be had to the effect of the publication by referring the Court to more general principles relating to the construction of statutes which seek to impair or abrogate a fundamental right such as freedom of expression. Reference was made to what Gleeson CJ said in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 at 577: 'Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.'
Case: APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 224 CLR 322 
Outcome: approved
is not to the point, argued the Attorney, that the subject matter of the publications broadly, acts of terrorism by Islamic fundamentalists might in some way pertain to law reform questions in Australia. In APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 224 CLR 322, the High Court rejected the plaintiffs' attempts to obtain the protection of the constitutional freedom for their professional advertisements by relating them to tort law reform. In particular, Gleeson CJ and Heydon J observed at [28]: 'The regulations are not aimed at preventing discussion of, say, "tort law reform", or some other such issue of public policy. They restrict the marketing of professional services.' And at [70], McHugh J said: 'No doubt communications about the desirability of regulations prohibiting or curtailing the ability of lawyers to advertise their services ensure that voters are informed about government policies that affect their access to such information. They are communications for the purpose of the Lange doctrine. So also are communications that inform the public about government policies affecting the capacity and opportunity of individuals to enforce their legal rights. I did not understand the State and federal governments to dispute that cl 139(1) cannot validly apply to communications of these types. But so far as the communications relied on in this case are concerned, only that part of the advertisement referring to "Premier Bob Carr and Senator Helen Coonan" concerns political or governmental matters within the meaning of Lange . The rest of that advertisement concerns matters that fall outside the protection of Lange . That part of the advertisement which concerns political matter is not so intertwined with non-protected matter that it cannot be severed from it.' In relation to APLA (see [182] above), the applicant made the following points: (a) The first limb of the Lange test looks to the 'terms, operation or effect of the law' . See also the passage from McHugh J in Coleman v Power at [91] (quoted at [179] above). (b) The practical effects of the law in the present case include preventing Australian voters from reading the contents of the books. To that extent the law restricts Australian voters from knowing what are the ideas contained in the books and what those ideas convey about the nature of the terrorist threat. (c) The Attorney's conclusion in the first two sentences of [185] above latches on to what the law is directed to and ignores its practical effect.