mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220
Outcome: cited
T2 reminded itself of the need when assessing credibility to be sensitive to the difficulties often faced by asylum seekers. It said that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. It referred to various authorities, including Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220 , which held that where a Tribunal makes an adverse finding in relation to a material claim, but cannot make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true. 19 T2 noted the delegate's view that the appellant had been generally forthright at his initial interview and that the answers he gave to questions had been consistent with information contained in his written application. T2 further noted that T1 had found it unnecessary to determine whether the appellant was in fact homosexual but had rejected his claims for other reasons. T2 went on to conclude that the appellant was not, and never had been, homosexual, relying upon what it regarded as the implausibility of a gay activist leading a "reclusive" life in Australia, at least in terms of his contact with Sydney's gay community. It therefore rejected his account of past mistreatment in the Ukraine. For that reason, T2 affirmed the delegate's decision. 20 On 5 May 2006 the Federal Magistrates Court, by consent, set aside T2's decision. It once again remitted the matter to be reheard and determined according to law. Once again, the reason for the Minister's consent is not apparent.
Case: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
Underlying the Minister's submission is a misconception. It is assumed that factual errors, leading to a finding that an applicant is not a witness of truth, cannot give rise to jurisdictional error. That is not the case. As has been repeatedly stated, there are two varieties of factual error. The first, taking into account an irrelevant fact, or failing to take into account a relevant fact, is an error in reasoning and can give rise to a successful application for judicial review: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. So too is arriving at a conclusion that is unreasonable in the Wednesbury sense. The second, namely giving too much, or too little, weight to particular evidence does not provide a ground of judicial review. Decisions on questions of fact of that kind are committed to merits review tribunals, such as the Tribunal.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Underlying the Minister's submission is a misconception. It is assumed that factual errors, leading to a finding that an applicant is not a witness of truth, cannot give rise to jurisdictional error. That is not the case. As has been repeatedly stated, there are two varieties of factual error. The first, taking into account an irrelevant fact, or failing to take into account a relevant fact, is an error in reasoning and can give rise to a successful application for judicial review: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. So too is arriving at a conclusion that is unreasonable in the Wednesbury sense. The second, namely giving too much, or too little, weight to particular evidence does not provide a ground of judicial review. Decisions on questions of fact of that kind are committed to merits review tribunals, such as the Tribunal.
Case: Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
It is clear that "the merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone": Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 per Brennan J. However, the process is not simply one of classification and there are problems at the margin. 66 I accept that at common law want of logic is not synonymous with error of law. I also accept that in general, when considering factual matters, the Tribunal may draw inferences that are incorrect and give rise to findings that are wrong without necessarily thereby committing jurisdictional error. However, every case must be considered in the light of its own particular circumstances, and there comes a point at which it may fairly be said that the Tribunal has not discharged its statutory function.
Case: Abebe v The Commonwealth of Australia [2004] HCA 32 ; (1999) 197 CLR 510
Outcome: cited
The Minister noted that the appellant sought to rely upon Abebe v Commonwealth of Australia [2004] HCA 32 ; (1999) 197 CLR 510 as support for the proposition that T3 was obliged to consider the so-called delay that occurred in this case before making its finding on credit: However, the Minister submitted, Abebe did not support the appellant's proposition. In Abebe , Gummow and Hayne JJ, in referring to the potential for refugee applicants to embroider their claims, nevertheless stated that the significance of such embroidery was a matter for the Tribunal in assessing the merits of the case.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision , can give rise to jurisdictional error. This may be because the Tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. Alternatively, it may be that the Tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.
Case: Hadid v Redpath (2001) 35 MVR 152
Outcome: cited
An analogous point, in the context of a negligence action, was made by Heydon JA, as his Honour then was, in Hadid v Redpath (2001) 35 MVR 152, where he said at [34]: "... [N]o favourable assumptions could be made, and it was up to the trial judge to put beyond question any suggestion that he or she had lost an understanding of the issues. Something should be said about how the possible effects of delay on the judicial process have been overcome. Some explanation should be given as to how the trial judge had recorded or recaptured impressions formed of witnesses at the time they testified. A judge might, for example, say 'I have a perfect recollection of all the characters in the trial' or 'I have contemporaneous notes of my impressions' ... [T]he trial judge made no statements of the kind just indicated, and no assumption in her favour that she had retained any relevant impressions could be made." [Emphasis added.] 95 I accept that the Tribunal's task in assessing credibility is often a difficult one. Having regard to the divergent views previously expressed about this appellant's credibility, the present case was no exception. T3 had to take particular care to ensure that it did not overlook the combined effect of delay, and the disadvantage to the appellant of having to repeat a detailed account of past mistreatment, when assessing the overall consistency of his account. 96 Both T1 and T2, as well as the delegate, seemed to have warned themselves appropriately of the need for appropriate caution when considering refugee claimants in unusual circumstances. T3 did nothing of the kind. Rather it undertook what seems to have been a detailed analysis of everything the appellant had previously said regarding his treatment in the Ukraine. It ultimately found five instances of supposed inconsistency. It extrapolated from these, together with one instance of a claim regarded as implausible, that the appellant was to be disbelieved in virtually everything he said. 97 Had the inconsistencies that T3 identified been both real and substantial, one might well understand how it arrived at its conclusion. Even then, it would have been highly desirable for T3 to have stated expressly that it had taken into account the dangers associated with drawing sweeping conclusions from what on any view was a mere handful of discrepancies.
Case: Forge v ASIC [2006] HCA 44 ; (2006) 229 ALR 223
Outcome: cited
while I note the submission of the second respondent concerning to the possibility of a reconsideration decision whereby the accreditation period of a residential care facility is varied upward or downward by a single day, I am not persuaded that the interpretation of s 7.1 should be resolved by an apprehension of extreme examples and distorting possibilities (cf Singh v Commonwealth [2004] HCA 43 ; (2004) 222 CLR 322 at [155] , Forge v ASIC [2006] HCA 44 ; (2006) 229 ALR 223 at [46] , New South Wales v Commonwealth [2006] HCA 52 ; (2006) 231 ALR 1 at [188] ). Conclusion
Case: New South Wales v Commonwealth [2006] HCA 52 ; (2006) 231 ALR 1
Outcome: cited
while I note the submission of the second respondent concerning to the possibility of a reconsideration decision whereby the accreditation period of a residential care facility is varied upward or downward by a single day, I am not persuaded that the interpretation of s 7.1 should be resolved by an apprehension of extreme examples and distorting possibilities (cf Singh v Commonwealth [2004] HCA 43 ; (2004) 222 CLR 322 at [155] , Forge v ASIC [2006] HCA 44 ; (2006) 229 ALR 223 at [46] , New South Wales v Commonwealth [2006] HCA 52 ; (2006) 231 ALR 1 at [188] ). Conclusion
Case: R v Industrial Court (S.A.); ex parte Mount Gunson Mines Pty Ltd (1982) 2 I.R 336
Outcome: cited
R v Industrial Court (S.A.); ex parte Mount Gunson Mines Pty Ltd (1982) 2 I.R 336 at 340, after considering The King (Conway) v Justices of The County Tyrone Mitchell J (King CJ and White J agreeing) observed: The dictionary meaning does not accord with that given by Andrews J in that there is no suggestion that the change or alteration must be a change or alteration only in part .
Case: Singh v Commonwealth [2004] HCA 43 ; (2004) 222 CLR 322
Outcome: cited
while I note the submission of the second respondent concerning to the possibility of a reconsideration decision whereby the accreditation period of a residential care facility is varied upward or downward by a single day, I am not persuaded that the interpretation of s 7.1 should be resolved by an apprehension of extreme examples and distorting possibilities (cf Singh v Commonwealth [2004] HCA 43 ; (2004) 222 CLR 322 at [155] , Forge v ASIC [2006] HCA 44 ; (2006) 229 ALR 223 at [46] , New South Wales v Commonwealth [2006] HCA 52 ; (2006) 231 ALR 1 at [188] ). Conclusion
Case: The King (Conway) v Justices of The County Tyrone (1906) 2 IrR 164
Outcome: cited
fact that "vary" imports the notion of change in some form has also been endorsed by Courts in different contexts. I note, for example, the following comment of Andrews J in The King (Conway) v Justices of The County Tyrone (1906) 2 IrR 164 at 170: The Court of Quarter Sessions, it will be observed, is empowered, on hearing the appeal, to confirm, vary or reverse the order appealed against. I think each of these three words has a separate and appropriate meaning. "Confirm" requires no explanation; "vary" in my opinion, means alter in part , as distinguished from discharging the entire order appealed against , and making a wholly different one; and "reverse", in my opinion, imports more than discharge , and means " changed to the contrary ". (emphasis in original) In R v Industrial Court (S.A.); ex parte Mount Gunson Mines Pty Ltd (1982) 2 I.R 336 at 340, after considering The King (Conway) v Justices of The County Tyrone Mitchell J (King CJ and White J agreeing) observed: The dictionary meaning does not accord with that given by Andrews J in that there is no suggestion that the change or alteration must be a change or alteration only in part .
Case: Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515
Outcome: applied
53 r 3(2)(a), as interpreted by the Full Court in Etheridge 149 FCR at [16], requires a question of law to be stated with precision as a pure question of law. Question (a) in notice of appeal does not do that. It is ambiguous. It does not identify the manner in which the Tribunal failed properly to apply the SoP. The Tribunal may have made an error of fact, of mixed fact and law or of law, in applying the SoP. Cf Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 at 524, 529; Roper v Repatriation Commission (2008) 108 ALD 16 at [21], [29] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593 at [23] . I do not accept the appellant's submission that question (1) at [24] is capable of falling within question (a) in the notice of appeal. Even if it does, that would not assist, because the latter does not comply with s 44(1) and rule 3(2)(a).
Case: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Outcome: applied
appeal "on a question of law" is narrower than an appeal that merely "involves" a question of law. Where an appeal lies "on a question of law", the subject matter of the appeal is the question of law stated as required by Order 53 r 3(2)(b): Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11] and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [13] .
Case: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137
Outcome: cited
the possible exception of question (b), the other questions in the notice of appeal suffer from the defects affecting questions (a) and (d). Question (c) asks whether the Tribunal failed to consider all the material and evidence before it in reaching its conclusion. That is directed to the Tribunal's fact finding. Question (e) asks whether the Tribunal failed to take into account unidentified "relevant matters". In Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at [19] a question whether the Tribunal failed to take into account one or more relevant considerations was held not to state a question of law on the grounds that it was insufficiently particular, begs the question as indicated in Lambroglou 12 AAR 515 , and refers to a conclusion the court may or may not reach, which needs to be based on a specifically stated question of law. Question (f) asks whether it was "open to" the Tribunal to make a finding. Question (g) asks whether the Tribunal "correctly applied" the definition of disease or injury in s 5D of the Act. I note in passing that s 5D defines what is meant by an injury or disease for the purposes of the provisions dealing with liability for an injury or disease. It does not bear on whether seasickness is a severe illness for the purposes of a factor in the SoP. Question (h) asks whether the appellant's diagnosed disorder "could be accepted" as war caused. That is a hypothetical question. It may be that question (b) whether the Tribunal has given adequate reasons for its decision states a question of law. Cf Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. I need not go into more detail in relation to these other questions in view of the fact that they are not relied on.
Case: Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101
Outcome: followed
the possible exception of question (b), the other questions in the notice of appeal suffer from the defects affecting questions (a) and (d). Question (c) asks whether the Tribunal failed to consider all the material and evidence before it in reaching its conclusion. That is directed to the Tribunal's fact finding. Question (e) asks whether the Tribunal failed to take into account unidentified "relevant matters". In Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at [19] a question whether the Tribunal failed to take into account one or more relevant considerations was held not to state a question of law on the grounds that it was insufficiently particular, begs the question as indicated in Lambroglou 12 AAR 515 , and refers to a conclusion the court may or may not reach, which needs to be based on a specifically stated question of law. Question (f) asks whether it was "open to" the Tribunal to make a finding. Question (g) asks whether the Tribunal "correctly applied" the definition of disease or injury in s 5D of the Act. I note in passing that s 5D defines what is meant by an injury or disease for the purposes of the provisions dealing with liability for an injury or disease. It does not bear on whether seasickness is a severe illness for the purposes of a factor in the SoP. Question (h) asks whether the appellant's diagnosed disorder "could be accepted" as war caused. That is a hypothetical question. It may be that question (b) whether the Tribunal has given adequate reasons for its decision states a question of law. Cf Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. I need not go into more detail in relation to these other questions in view of the fact that they are not relied on.
Case: Condell v Commissioner of Taxation [2007] FCAFC 44
Outcome: followed
the event that I might conclude that there had been no compliance with r 3(2)(b), the appellant sought leave to amend the notice of appeal to the Federal Magistrates Court so as to raise the two questions set out at [24]. In Teoh v Minister for Immigration [1994] FCA 1017 ; (1994) 49 FCR 409 the Full Court held that s 28 of the Federal Court of Australia Act and Order 13 r 2(1) enable the Full Court to grant leave to amend a pleading, an application or other originating process. See in particular per Carr J at 428. I see no reason why that would not extend to permitting an amendment to the questions of law in an originating process, in this case the notice of appeal to this Court that, by transfer, was heard by the Magistrate from whom the present appeal comes. See Condell v Commissioner of Taxation [2007] FCAFC 44 at [14] per Gyles J with whom Kenny and Allsop JJ agreed.
Case: Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593
Outcome: applied
53 r 3(2)(a), as interpreted by the Full Court in Etheridge 149 FCR at [16], requires a question of law to be stated with precision as a pure question of law. Question (a) in notice of appeal does not do that. It is ambiguous. It does not identify the manner in which the Tribunal failed properly to apply the SoP. The Tribunal may have made an error of fact, of mixed fact and law or of law, in applying the SoP. Cf Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 at 524, 529; Roper v Repatriation Commission (2008) 108 ALD 16 at [21], [29] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593 at [23] . I do not accept the appellant's submission that question (1) at [24] is capable of falling within question (a) in the notice of appeal. Even if it does, that would not assist, because the latter does not comply with s 44(1) and rule 3(2)(a).
Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115
Outcome: cited
am not satisfied that the Tribunal's use of the expressions "not attributable to operational service" and "the cause of the seasickness" shows that it properly considered s 196B(14). The subsection is broader than "attributable" in par (b) and "cause" in par (f). Paragraph (a) was potentially applicable. It could be that the appellant's seasickness resulted from an occurrence (rough seas) on the way to Vietnam. The Tribunal did not consider whether the appellant's pre-existing disposition to seasickness was aggravated by his service (par (d)). Nor did it consider whether the seasickness "arose out of" his operational service (par (b)). In Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at [27] , in considering a provision in the same terms as s 169B(14)(b), the Court said the use disjunctively of the expressions "arose out of" and "attributable" manifests an intention to give "defence-caused" a broad meaning. What was there said in relation to the expression "defence-caused injury" is applicable to "injury ... related to service" in s 196B(14). After noting that the Tribunal did not refer to s 196B(14), the Federal Magistrate observed that the "phraseology" in [10] of the Tribunal's reasons was "in some respects unfortunate". Nevertheless his Honour regarded that paragraph as containing "an unintended paraphrase of the requirements of" s 196B(14). I am unable to agree. According to the Macquarie Dictionary a paraphrase is a "restatement of the sense of a text or passage, as for clearness". The Tribunal's use of the words "attributable to" and "the cause" does not capture the sense of the relevant parts of subsection (14), and is not aptly described as a paraphrase. It may well be that the explanation for the Tribunal's failure to refer expressly to s 196B(14) lies in the fact that the appellant's counsel, who did not appear on the present appeal, informed the Tribunal that the respondent's references to s 196B(14) were misplaced, and that the appropriate provision was s 9. That section deals with the circumstances in which an injury is to be taken to be a war-caused injury or disease. It is in some respects similar to s 196B(14). However, the Tribunal did not refer to s 9 either. As I have said, it was common ground on the appeal to this Court that it was necessary for the Tribunal to go through the "related to service" exercise in s 196B(14). It did not do so, and the ground of appeal related to the first amended question of law (namely par 2 of the notice) is made out. The second amended question of law is whether the Tribunal was correct in holding that a pre-existing condition can never give rise to a stressor that is related to service within s 196B. The Tribunal's reasoning on this issue is set out at [6] above. It involved the following steps:
Case: Roper v Repatriation Commission (2008) 108 ALD 16
Outcome: followed
53 r 3(2)(a), as interpreted by the Full Court in Etheridge 149 FCR at [16], requires a question of law to be stated with precision as a pure question of law. Question (a) in notice of appeal does not do that. It is ambiguous. It does not identify the manner in which the Tribunal failed properly to apply the SoP. The Tribunal may have made an error of fact, of mixed fact and law or of law, in applying the SoP. Cf Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 at 524, 529; Roper v Repatriation Commission (2008) 108 ALD 16 at [21], [29] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593 at [23] . I do not accept the appellant's submission that question (1) at [24] is capable of falling within question (a) in the notice of appeal. Even if it does, that would not assist, because the latter does not comply with s 44(1) and rule 3(2)(a).