mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kumar v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCA 18
Outcome: cited
I accept that such orders should be made only in the rarest of circumstances where serious lapses of proper conduct have occurred for such an order to be justified. Like Mansfield J in Kumar v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCA 18 , I am conscious of the fact (and think it is quite a significant matter) that the moment a personal costs order is made against a lawyer, a problem of conflict immediately arises between the lawyer and his client. Such conflicts do not assist the administration of justice. It therefore seems to me that it is not generally appropriate, except in a serious case and even then only when an application is made by a party, that consideration should be given to the imposing of a personal costs order. I am not, of course, saying that it is not open to the court to impose a personal costs order of its own motion. However, the Federal Magistrate did not proceed in this case to impose any personal costs order and so no consequence arises in that regard. It seems to me, having read carefully the material and having listened to the recording, that in the way in which the Federal Magistrate dealt with the matter, even if she might have desisted from raising the matter unless an application had been made, her conduct fell a very long way short of anything that could amount to actual or apprehended bias. 13 The appellant did raise some other matters specifically on the issue of bias. I have given consideration to all of those matters and again I think that they have no substance. One particular matter was the fact that, apparently, the Federal Magistrate had read the first of the decisions of the Refugee Review Tribunal, rather than the second decision of the Refugee Review Tribunal, prior to the hearing and understood that that first decision was the decision under review. I have read the parts of the transcript relating to that matter and it seems to me that, again, it does not give rise to any claim of bias.
Case: Syan v Refugee Review Tribunal (1995) 61 FCR 284
Outcome: cited
The crux of the argument put on behalf of the appellant is that before the second step was taken there should have been a positive determination on the first question as to whether there was detention or not. I do not agree that that is a necessary prerequisite to a consideration of relocation. In many cases it may be desirable for decision-makers to address the first question to conclusion, but I do not think that failure to do so gives rise to any relevantly appealable error. In coming to this conclusion I appear to be supported by the decision of this Court in Syan v Refugee Review Tribunal (1995) 61 FCR 284 and particularly some observations made by Beazley J at 288 and 290-291. It follows that the fifth ground of appeal cannot succeed. 30 The sixth ground of appeal is associated with the seventh and eighth grounds of appeal and I will set them out together: 6. The learned Federal Magistrate erred by failing to find that the Tribunal made jurisdictional error as it failed to ask two important questions in making a finding critical to its ultimate lack of satisfaction. 7. The learned Federal Magistrate erred by failing to find that in making a finding that the Tribunal may not accept that he would be even interested in legitimately expressing his political opinion in a manner that would bring him to the adverse attention of anyone should he return to India the Tribunal failed to ask an important question and thus made a jurisdictional error. 8. The learned Federal Magistrate erred by failing to find that in making the finding "I may not accept his alleged convictions were sufficiently strong such that their disregard may constitute persecution for him" the Tribunal made jurisdictional error as it: (a) failed to take relevant matters into consideration and; (b) took irrelevant matters into consideration. 31 So far as grounds 6 and 7 are concerned, they really depend upon an argument that the Tribunal did not address sufficiently what might be the process of reasoning flowing from findings relating to detention for two or three days and findings relating to the comparative level of political motivation of the appellant and his family. I must say I think these are classic examples of attempting to revisit the facts.
Case: Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050
Outcome: affirmed
The Administrative Appeals Tribunal constituted by the Hon R J Groom, Deputy President, varied a decision of the Secretary refusing an order under s 1184K(1). The Tribunal directed that $60,000 of Mr Barrington's compensation payment be treated as not having been made: Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050. 5 On appeal to this Court the Secretary accepts that the decision of the Tribunal was open on the evidence. However, he submits that in its process the Tribunal made two errors of law: &#8226; It failed to deal with a submission seriously advanced by the Secretary which was worthy of consideration, namely the fact that Mr Barrington's purchase of a house after he had received notice of the lump sum preclusion period told against the recognition of special circumstances; and &#8226; It denied the Secretary natural justice by basing its finding of "special circumstances" on the payment of $47,500 legal costs out of the settlement payment of $285,000: 1. without giving the Secretary any notice that it might treat the costs payment as relevant; 2. having discouraged the Secretary from making submissions on that issue; and 3. thereby denying the Secretary the opportunity to make submissions on that issue. 6 Mr Barrington was injured at work in 1999 and received weekly compensation until 12 September 2002. On that day he settled an action for damages for $285,000 inclusive of legal costs. He received the net amount of $237,500 after deduction of legal costs. Mr Barrington said in evidence that he actually paid $55,000 in legal fees. The Tribunal thought it possible that he was required to pay a further $7,500 out of the net amount, but was satisfied he paid at least $47,500.
Case: Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 460-461
Outcome: cited
This approach has been adopted in later cases: Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 460-461 and Repatriation Commission v Smith (1997) 75 FCR 298 at 306. However, it may be doubted whether this line of authority is consistent with the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323.
Case: Repatriation Commission v Smith (1997) 75 FCR 298 at 306
Outcome: cited
This approach has been adopted in later cases: Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 460-461 and Repatriation Commission v Smith (1997) 75 FCR 298 at 306. However, it may be doubted whether this line of authority is consistent with the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: discussed
This approach has been adopted in later cases: Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 460-461 and Repatriation Commission v Smith (1997) 75 FCR 298 at 306. However, it may be doubted whether this line of authority is consistent with the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. 29 In Yusuf the High Court was concerned with s 430(1) of the Migration Act 1958 (Cth) which requires the Refugee Review Tribunal (RRT), when it makes a decision on review, to prepare a written statement that : "(a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." The obligation imposed on the RRT is substantially the same as that under s 43(2) of the Administrative Appeals Tribunal Act . 30 As part of her claim for a protection visa the respondent in Yusuf had alleged that her husband had been attacked in the family home in Somalia and driven away by members of a rival clan. The RRT affirmed the refusal of a protection visa without expressing any finding about the alleged attack on the husband. The High Court reversed the Federal Court's decision that the RRT had failed to comply with s 430(1). 31 The High Court held that s 430(1)(c) only required the RRT to set out the findings which it did make and which it considered material to the decision to be made; the section did not oblige the setting out of findings which the Tribunal had not in fact made: per Gleeson CJ at [10], per McHugh, Gummow and Hayne JJ at [68]. A failure to make a finding may reveal another error, such as failure to take account of relevant considerations: [73]-[75], but that is a distinct and different ground. 32 In the present case the argument said to be left unconsidered would not be a relevant consideration in the sense expounded in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39, that is to say a consideration the Tribunal was bound by the Social Security Act to take into account. On the appeal to this Court senior counsel for the Secretary did not so contend. At best, Mr Barrington's purchase of the house after awareness of the preclusion period was a part of the factual matrix of this particular case, the setting in which s 1184K(1) had to be applied. The reasoning in Yusuf rather suggests the Tribunal made no legal error simply by failing to refer to one argument advanced, so long as it otherwise complied with s 43(2B) of the Administrative Appeals Tribunal Act .
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39
Outcome: cited
In the present case the argument said to be left unconsidered would not be a relevant consideration in the sense expounded in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39, that is to say a consideration the Tribunal was bound by the Social Security Act to take into account. On the appeal to this Court senior counsel for the Secretary did not so contend. At best, Mr Barrington's purchase of the house after awareness of the preclusion period was a part of the factual matrix of this particular case, the setting in which s 1184K(1) had to be applied. The reasoning in Yusuf rather suggests the Tribunal made no legal error simply by failing to refer to one argument advanced, so long as it otherwise complied with s 43(2B) of the Administrative Appeals Tribunal Act .
Case: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20 ; (1979) 140 CLR 675 at 680, 684
Outcome: cited
However, on the assumption that Dennis Wilcox is still good law, the principle for which that case stands is not applicable here. Mr Barrington's being aware of the preclusion period before he purchased the Burnie house was not in dispute. It was not a discrete legal or factual issue standing apart from the rest of the case as discussed in the Tribunal's reasons. It was a part of the larger narrative which also included Mr Barrington's plans and expectations when he bought the house, and how illness and lack of employment opportunities thwarted them. The omission by the Tribunal of any reference to a particular element of that narrative does not of itself lead to the conclusion that such element was ignored or overlooked: cf Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20 ; (1979) 140 CLR 675 at 680, 684. If a fact is not in itself disputed, that may be a reason why it is not mentioned. The bare fact of spending compensation money on an asset after becoming aware of a preclusion period would often tell against a finding of special circumstances, as the Guide points out. But in the present case what really opened up the possibility of a special circumstances finding is what happened after the purchase, including Mr Barrington's health and employment problems.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: cited
The Tribunal did not mislead counsel for the Secretary. Having raised the issue of Mr Barrington's costs, and given counsel the opportunity to submit anything he wished on the two questions mentioned, the Tribunal declined the offer of more detailed submissions. This case is a far cry from Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 which senior counsel for the Secretary relied on in the present appeal. There the trial judge told counsel that he did not accept the evidence of an expert witness on a particular issue, leading counsel to make no further submissions, and then decided the case by relying on the same witness. 39 The appeal will be dismissed with costs. I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: Counsel for the Applicant: P Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: N Batten Solicitor for the Respondent: Launceston Community Legal Centre Date of Hearing: 27 April 2006 Date of Judgment: 10 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/527.html
Case: Baidakova v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1436
Outcome: distinguished
Fundamental to the Tribunal's decision was its understanding that the relevant test of "substantial compliance" was as discussed in Baidakova v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1436 at 6. The Tribunal applied the "substantial compliance" test to Condition 8202(3)(b). However, the requirement in Condition 8202(3)(b) to provide a certificate cannot, logically, be satisfied by substantial compliance. Either Condition 8202(3)(b) is satisfied or it is not; either there is a certificate of an "at least satisfactory" academic result or there is not ( Jayasekara v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 167 ; (2006) 156 FCR 199 per Heerey and Sundberg JJ). It is not in dispute that the education provider, the University of Sydney ('the University') had not provided the necessary certificate. There was no compliance with Condition 8202(3)(b). There is ' no scope for operation of the distinction between strict compliance and substantial compliance ' in determining whether Item 8202(3)(b) of Sch 8 of the Regulations is satisfied ( Weerasinghe v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 261 at [10] , cited in Jayasekara at [5]).
Case: Cheng v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCAFC 71
Outcome: cited
The appellant submits that it is conceivable that, had he been informed in the s 359A letter that the real issue was the certification of his academic results as satisfactory, he could have obtained such certification. While I accept that it is not for the Court to evaluate possible outcomes and hypothetical scenarios, in the circumstances of this case I do not accept that it would have been even possible for the appellant to have complied with Condition 8202. I do not accept that the appellant could have obtained a certificate of at least satisfactory academic results when he had, after appeals, been excluded from enrolment for two years due to his failure to meet course requirements. In any event, at the relevant time, the necessary condition imposed on the visa by Condition 8202 was not satisfied. Even if the appellant could have attempted to persuade the University to reconsider, there is nothing in the language of Condition 8202 that invites a consideration of the internal processes of the education provider which led to a refusal to certify a satisfactory academic result. The Tribunal could not take that into account ( Cheng v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCAFC 71 at [35] [36]). Questions of academic progress should be left to the judgment of the education provider ( Jayasekara at [16]).
Case: Jayasekara v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 167 ; (2006) 156 FCR 199
Outcome: applied
Fundamental to the Tribunal's decision was its understanding that the relevant test of "substantial compliance" was as discussed in Baidakova v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1436 at 6. The Tribunal applied the "substantial compliance" test to Condition 8202(3)(b). However, the requirement in Condition 8202(3)(b) to provide a certificate cannot, logically, be satisfied by substantial compliance. Either Condition 8202(3)(b) is satisfied or it is not; either there is a certificate of an "at least satisfactory" academic result or there is not ( Jayasekara v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 167 ; (2006) 156 FCR 199 per Heerey and Sundberg JJ). It is not in dispute that the education provider, the University of Sydney ('the University') had not provided the necessary certificate. There was no compliance with Condition 8202(3)(b). There is ' no scope for operation of the distinction between strict compliance and substantial compliance ' in determining whether Item 8202(3)(b) of Sch 8 of the Regulations is satisfied ( Weerasinghe v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 261 at [10] , cited in Jayasekara at [5]). 20 The appellant submits that it is conceivable that, had he been informed in the s 359A letter that the real issue was the certification of his academic results as satisfactory, he could have obtained such certification. While I accept that it is not for the Court to evaluate possible outcomes and hypothetical scenarios, in the circumstances of this case I do not accept that it would have been even possible for the appellant to have complied with Condition 8202. I do not accept that the appellant could have obtained a certificate of at least satisfactory academic results when he had, after appeals, been excluded from enrolment for two years due to his failure to meet course requirements. In any event, at the relevant time, the necessary condition imposed on the visa by Condition 8202 was not satisfied. Even if the appellant could have attempted to persuade the University to reconsider, there is nothing in the language of Condition 8202 that invites a consideration of the internal processes of the education provider which led to a refusal to certify a satisfactory academic result. The Tribunal could not take that into account ( Cheng v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCAFC 71 at [35] [36]). Questions of academic progress should be left to the judgment of the education provider ( Jayasekara at [16]).
Case: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: cited
In Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [56] , Gaudron and Gummow JJ approved the observation of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration ; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400 to the effect that a writ may not be granted if no useful result could ensue. Their Honours observed at [58] that, consistent with the principle that '[t] he court does not act in vain ', the decision-maker may have been bound by the governing statute to refuse the administrative determination applied for, or ' the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor '.
Case: Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
In Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [56] , Gaudron and Gummow JJ approved the observation of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration ; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400 to the effect that a writ may not be granted if no useful result could ensue. Their Honours observed at [58] that, consistent with the principle that '[t] he court does not act in vain ', the decision-maker may have been bound by the governing statute to refuse the administrative determination applied for, or ' the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor '. 22 The requirement of procedural fairness is concerned with ' observance of fair decision -making procedures rather than with the character of the decision which emerges from the observance of those procedures ' ( Aala at [59]). Where there is a failure to observe fair decision-making procedures and the decision is invalid for want of procedural fairness, there is no reason to withhold discretionary relief in the absence of conduct on the part of the appellant warranting the refusal to exercise discretion ( SAAP at [83] [84] per McHugh J). There is no such conduct in this case. 24 However, relief may be withheld if there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure. Aala and SAAP leave open a refusal of relief if it is shown that the decision-maker was bound by the governing statute to refuse the application ( SZEEU at [232] per Allsop J). In those circumstances, the grant of relief would lack utility.