mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
I have said, for completeness and in case there is a further appeal, I will set out my conclusions as to the approach taken by the Panel. I bear in mind that the Panel's reasons are not to be construed minutely and with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. The Panel was under an obligation to give each party a written statement setting out its decision and the reasons for its decision (s 160 of the FM Act). The Authority submits that the Panel was also under the obligation as to reasons contained in s 25D of the Acts Interpretation Act 1901 (Cth). I do not need to deal with that submission because I have reached a clear conclusion about the Panel's reasons without having to rely on the Authority's submission based on that section. In my opinion, the Panel did not proceed by reference to the power in s 32(8) of the FM Act. It proceeded on the basis that there was a general discretion to depart from the provisions of the Management Plan. There is no reference in the Panel's reasons to s 32(8) of the FM Act. There is no reference to the fact that the Authority did not address the power in s 32(8). There is no reference to the question whether, in those circumstances, it was open to the Panel to exercise the power in s 32(8) having regard to its powers in s 142 and s 150 of the FM Act. There is no reference to the question whether, in selecting the person to whom a grant is to be made available, it is open to the decision-maker to in effect exercise the power in s 32(8) of the FM Act before exercising the power of selection. There is no reference to the particular merits of exercising or not exercising the power in s 32(8). I have considered the matters to which the first respondent referred, including the matters in the transcript, but none of them persuade me that the Panel considered it was exercising the power in s 32(8) of the FM Act. The Panel made its decision on the basis that it was free to depart from the provisions of the Management Plan where it would be unreasonable not to do so.
Case: Secretary, Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32
Outcome: cited
first respondent's submission that the Panel may, for the purposes of reviewing the decision, exercise a power or discretion conferred on the Authority even where the Authority did not exercise the power or discretion is correct: Australian Securities and Investments Commission v Donald [2003] FCAFC 318 ; (2003) 136 FCR 7 at 15 [29] - [30] per Kenny J. That is so, it seems, even where the original decision-maker, in reaching the decision it did, was not bound to consider the exercise of the particular power or discretion: Secretary, Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32. However, these principles do not assist the first respondent's argument because, for the reasons I have given, the Authority did not have the power or discretion to vary or revoke a condition attached to the first respondent's fishing permit in the course of making the decision it did.
Case: Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA [2000] WASC 79
Outcome: cited
was a good deal of debate before me as to whether the power in s 32(8) to vary or revoke a condition attached to a fishing permit could only be exercised during the period of the permit and for a purpose related to the fishing activities undertaken, or to be undertaken pursuant to the permit. That question raises difficult issues which I will refrain from addressing because it is not necessary for me to do so. I would only say that the decision to which the first respondent referred, Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA [2000] WASC 79 , is, with respect, of no real assistance because it is a decision dealing with quite a different statutory scheme (see at [30]-[41] per Wheeler J).
Case: Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1
Outcome: followed
The tribunal's task was to consider whether the appellant had a well -ounded fear that he might be persecuted. It ignored the fact that an attack such as this following on from his being banished for publicly exposed and publicized reasons, could have provided a well founded fear of persecution. In my opinion no rational person could have failed to give consideration that there was a 'real chance' that he would suffer persecution for a Convention reason within the meaning of s 91R of the Act: see Chan v Minister for Immigration [1989] HCA 62 ; (1989) 169 CLR 379 at 389, 398, 407, 429; Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [160] - [161] per Hayne and Heydon JJ . The function of an administrative decision-maker is to give genuine and real consideration to the material before it. 63 In Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [160] - [161] Hayne and Heydon JJ said: '[160] When reviewing a refusal to grant a protection visa, the question for the tribunal must always be whether the particular applicant has a well-founded fear of persecution (as persecution is now to be understood [s 91R]) for a Convention reason. If the applicant fears persecution for a Convention reason, examining whether that fear is well founded requires the tribunal to decide whether there is a real chance that the applicant would suffer persecution for a Convention reason. As pointed out [(1989) [1989] HCA 62 ; 169 CLR 379 at 389; 87 ALR 412 at 418 per Mason CJ, CLR 398; ALR 424-5 per Dawson J, CLR 407; ALR 431-2 per Toohey J, CLR 429; ALR 448-9 per McHugh J. See also Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 571-5; [1997] HCA 22 ; 144 ALR 567 at 576-9; [1997] HCA 22 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.] in Chan v Minister for Immigration and Ethnic Affairs , reference to a real chance of persecution must not be substituted for, or be permitted to obscure the content of, the test prescribed in the Convention - whether an applicant holds a well-founded fear of persecution. It is sometimes convenient nonetheless to use the expression "real chance" as a shorthand reference to the nature of the factual inquiry being made. [161] The available material bearing on whether an applicant's subjective fear of persecution for a Convention reason is a fear that is well founded will vary from case to case. Usually, considering whether an applicant's fear is well founded will be assisted by considering how others, in like case to the applicant, are being, or have in the past been, treated. [Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 575; [1997] HCA 22 ; 144 ALR 567 at 579; [1997] HCA 22] The difficulties of making such comparisons are obvious.'
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411
Outcome: cited
It is important to recognize that the tribunal is the body created by the Parliament to conduct the review on the merits of decisions by the Minister or his or her delegate. The role of the court in proceedings such as this is to review whether in reaching its decision, the tribunal adhered to or departed from the procedure for the conduct of the review laid down in the Act or, to the extent that s 422B and Div 4 Pt 7 of the Act do not exclude them, the principles of common law. Nonetheless, as Brennan J observed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 662: ' [t] he distinction between method and merits is sometimes elusive.' But, where the court is not authorized by statute to substitute its view of the merits, it must confine itself to a consideration of whether the repository of the statutory power under challenge, here the tribunal, has arrived at its decision on the merits by a procedure authorized by, and in conformity with, the enactment which conferred the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at 415-416 [14] - [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the repository so acted, even if the court disagrees with the merits of the decision so reached, the court must hold that the repository has exercised lawfully the jurisdiction which it had.
Case: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408
Outcome: cited
In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 ,Dixon CJ, Williams, Webb and Fullagar JJ said: 'The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.' (see too Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ)
Case: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 200 [104]
Outcome: cited
On 2 May 2006 the Minister filed an affidavit of that date by the district registrar of the tribunal, Mr Willoughby-Thomas, which I have admitted as fresh evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) in order that the court can understand what documents in the appeal book were before the tribunal and how and when they were received by it, since this was not clear from the index and other material in the appeal book. The appellant did not object to the affidavit or its contents. In my opinion the evidence was important to ensure that the proceedings do not miscarry ( CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 200 [104] ).
Case: Chan v Minister for Immigration [1989] HCA 62 ; (1989) 169 CLR 379
Outcome: cited
The tribunal's task was to consider whether the appellant had a well -ounded fear that he might be persecuted. It ignored the fact that an attack such as this following on from his being banished for publicly exposed and publicized reasons, could have provided a well founded fear of persecution. In my opinion no rational person could have failed to give consideration that there was a 'real chance' that he would suffer persecution for a Convention reason within the meaning of s 91R of the Act: see Chan v Minister for Immigration [1989] HCA 62 ; (1989) 169 CLR 379 at 389, 398, 407, 429; Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [160] - [161] per Hayne and Heydon JJ . The function of an administrative decision-maker is to give genuine and real consideration to the material before it. 63 In Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [160] - [161] Hayne and Heydon JJ said: '[160] When reviewing a refusal to grant a protection visa, the question for the tribunal must always be whether the particular applicant has a well-founded fear of persecution (as persecution is now to be understood [s 91R]) for a Convention reason. If the applicant fears persecution for a Convention reason, examining whether that fear is well founded requires the tribunal to decide whether there is a real chance that the applicant would suffer persecution for a Convention reason. As pointed out [(1989) [1989] HCA 62 ; 169 CLR 379 at 389; 87 ALR 412 at 418 per Mason CJ, CLR 398; ALR 424-5 per Dawson J, CLR 407; ALR 431-2 per Toohey J, CLR 429; ALR 448-9 per McHugh J. See also Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 571-5; [1997] HCA 22 ; 144 ALR 567 at 576-9; [1997] HCA 22 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.] in Chan v Minister for Immigration and Ethnic Affairs , reference to a real chance of persecution must not be substituted for, or be permitted to obscure the content of, the test prescribed in the Convention - whether an applicant holds a well-founded fear of persecution. It is sometimes convenient nonetheless to use the expression "real chance" as a shorthand reference to the nature of the factual inquiry being made. [161] The available material bearing on whether an applicant's subjective fear of persecution for a Convention reason is a fear that is well founded will vary from case to case. Usually, considering whether an applicant's fear is well founded will be assisted by considering how others, in like case to the applicant, are being, or have in the past been, treated. [Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 575; [1997] HCA 22 ; 144 ALR 567 at 579; [1997] HCA 22] The difficulties of making such comparisons are obvious.'
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were 'somewhat implausible' and gave 'no evidence' of the Jirga's activities). That was a jurisdictional error: see Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33] - [38] .
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: cited
In exercising its function of conducting a review of a decision under s 414(1) of the Act, the tribunal cannot simply act perfunctorily. Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the applicant for review (cf: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394 [24] - [25] per Gummow and Callinan JJ, 406-407 [86]-[87] per Kirby J, 408 [95] per Hayne J).
Case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Outcome: cited
In arriving at what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give 'proper, genuine and realistic consideration to the merits of the case' ( Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
It is important to recognize that the tribunal is the body created by the Parliament to conduct the review on the merits of decisions by the Minister or his or her delegate. The role of the court in proceedings such as this is to review whether in reaching its decision, the tribunal adhered to or departed from the procedure for the conduct of the review laid down in the Act or, to the extent that s 422B and Div 4 Pt 7 of the Act do not exclude them, the principles of common law. Nonetheless, as Brennan J observed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 662: ' [t] he distinction between method and merits is sometimes elusive.' But, where the court is not authorized by statute to substitute its view of the merits, it must confine itself to a consideration of whether the repository of the statutory power under challenge, here the tribunal, has arrived at its decision on the merits by a procedure authorized by, and in conformity with, the enactment which conferred the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at 415-416 [14] - [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the repository so acted, even if the court disagrees with the merits of the decision so reached, the court must hold that the repository has exercised lawfully the jurisdiction which it had.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 the reasons of an administrative decision-maker are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 42 The tribunal said that if the appellant had tried to establish his own NGO group he would not have failed to refer to it at all in his submissions to the department. Had there been no independent material to the contrary before the tribunal such a finding may have been open. 43 The tribunal said that ' it consider[ed] it somewhat implausible that the Jirga members might even have been aware of ' the existence the appellant's group. The newspaper article of 10 November 2002 was evidence that the tribunal had before it which described both him and, the group, Llawyl, by name. The tribunal made no finding that the newspaper article was not genuine or otherwise. The tribunal was required by s 430 of the Act to express reasons as founding its decision, why it was 'somewhat implausible' that the Jirga was aware of the appellant's group. Yet according to the express words of the newspaper article the Jirga, had in fact, made the very connection. The tribunal merely asserted, without referring to any basis in the evidence before it, that it, the Tribunal, found it 'implausible' or unbelievable that the Jirga made the connection it was reported to have made. This ignores the fact reported, namely that the Jirga did just that. There was no reasoning process by the tribunal for doubting this, let alone one based on any evidence.
Case: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222
Outcome: cited
I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were 'somewhat implausible' and gave 'no evidence' of the Jirga's activities). That was a jurisdictional error: see Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33] - [38] .
Case: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
In arriving at what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give 'proper, genuine and realistic consideration to the merits of the case' ( Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J.
Case: NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90
Outcome: applied
On 4 May 2006, the appellant filed supplementary submissions which did not respond to or address the material filed by the Minister pursuant to my orders of 19 April 2006, but raised new matter. The Minister objected to this material. I have not taken account of those submissions in these reasons because they are outside the leave which I granted ( NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 at 159 [191] - [192] ). 74 The appeal must be allowed. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 9 June 2006 Appellant: In person Counsel for the Respondent: Ms RA Pepper Solicitor for the Respondent: Clayton Utz Date of Hearing: 19 April 2006 Date of last written submission: 4 May 2006 Date of Judgment: 9 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/724.html
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: cited
So, in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 223-224 [39] Gleeson CJ, Gummow and Heydon JJ referred to the inference which is open to a court exercising the function of judicially reviewing a decision of the executive government that if the decision-maker does not give any reason for his or her decision the court may be able to infer that he or she had no good reason.
Case: Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014
Outcome: cited
I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were 'somewhat implausible' and gave 'no evidence' of the Jirga's activities). That was a jurisdictional error: see Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33] - [38] .
Case: SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431
Outcome: cited
I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were 'somewhat implausible' and gave 'no evidence' of the Jirga's activities). That was a jurisdictional error: see Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33] - [38] .