mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
I accept the first respondent's submissions in respect to the first ground of appeal. There is nothing unreasonable in the Tribunal's evaluation of the evidence before it. There was evidence to which the Tribunal referred that allowed for a conclusion that the appellant's claims were not plausible. He and his family had lived in the same residence (whilst in Lithuania) since 1998 or 1999. His wife worked. His son attended school. The appellant travelled to other parts of Europe, apparently without difficulty, and re-entered Lithuania, again apparently without difficulty. Whilst in those other countries, he had never taken the opportunity to apply for protection, notwithstanding his complaint that he has been subject to discrimination since 1984. On that evidence, the Tribunal could find that his claims were not plausible. That was not the only finding that was open but it was open. As the first respondent rightly contends, in the absence of any manifest unreasonableness or illogicality ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 and 368; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [115] ; see also Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [137] - [138] ), the findings made by the Tribunal are findings of fact which should not be disturbed by this Court on appeal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 36.
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: cited
I accept the first respondent's submissions in respect to the first ground of appeal. There is nothing unreasonable in the Tribunal's evaluation of the evidence before it. There was evidence to which the Tribunal referred that allowed for a conclusion that the appellant's claims were not plausible. He and his family had lived in the same residence (whilst in Lithuania) since 1998 or 1999. His wife worked. His son attended school. The appellant travelled to other parts of Europe, apparently without difficulty, and re-entered Lithuania, again apparently without difficulty. Whilst in those other countries, he had never taken the opportunity to apply for protection, notwithstanding his complaint that he has been subject to discrimination since 1984. On that evidence, the Tribunal could find that his claims were not plausible. That was not the only finding that was open but it was open. As the first respondent rightly contends, in the absence of any manifest unreasonableness or illogicality ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 and 368; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [115] ; see also Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [137] - [138] ), the findings made by the Tribunal are findings of fact which should not be disturbed by this Court on appeal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 36.
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264
Outcome: cited
I accept the first respondent's submissions in respect to the first ground of appeal. There is nothing unreasonable in the Tribunal's evaluation of the evidence before it. There was evidence to which the Tribunal referred that allowed for a conclusion that the appellant's claims were not plausible. He and his family had lived in the same residence (whilst in Lithuania) since 1998 or 1999. His wife worked. His son attended school. The appellant travelled to other parts of Europe, apparently without difficulty, and re-entered Lithuania, again apparently without difficulty. Whilst in those other countries, he had never taken the opportunity to apply for protection, notwithstanding his complaint that he has been subject to discrimination since 1984. On that evidence, the Tribunal could find that his claims were not plausible. That was not the only finding that was open but it was open. As the first respondent rightly contends, in the absence of any manifest unreasonableness or illogicality ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 and 368; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [115] ; see also Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [137] - [138] ), the findings made by the Tribunal are findings of fact which should not be disturbed by this Court on appeal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 36.
Case: Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
I accept the first respondent's submissions in respect to the first ground of appeal. There is nothing unreasonable in the Tribunal's evaluation of the evidence before it. There was evidence to which the Tribunal referred that allowed for a conclusion that the appellant's claims were not plausible. He and his family had lived in the same residence (whilst in Lithuania) since 1998 or 1999. His wife worked. His son attended school. The appellant travelled to other parts of Europe, apparently without difficulty, and re-entered Lithuania, again apparently without difficulty. Whilst in those other countries, he had never taken the opportunity to apply for protection, notwithstanding his complaint that he has been subject to discrimination since 1984. On that evidence, the Tribunal could find that his claims were not plausible. That was not the only finding that was open but it was open. As the first respondent rightly contends, in the absence of any manifest unreasonableness or illogicality ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 and 368; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [115] ; see also Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [137] - [138] ), the findings made by the Tribunal are findings of fact which should not be disturbed by this Court on appeal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 36.
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: followed
In respect to the second ground of appeal, the first respondent submitted that there was no error in the finding made by the Federal Magistrate and that the information complained of fell within the ambit of s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [41] [64]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at [48] ; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] . The first respondent further contended in reliance upon SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 that, in any event, the information itself did not form part of the reason for decision but rather it was the Tribunal's appraisal of that information as being inconsistent with the appellant's claims to have suffered past persecution that was the reason for decision. 32 Although the appellant now asserts that he was only telling the Tribunal he left on his passport, as opposed to leaving without difficulty, the Tribunal's interpretation of his answer that the appellant had also agreed to that second assertion was not unreasonable. The Tribunal was entitled to assume that the appellant was answering its question in full. It follows that there is no error in finding that the appellant provided that relevant information to the Tribunal pursuant to s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419.
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
With respect to the allegation of bias in ground 1, the first respondent submitted: [T]here is nothing in the decision record that suggests that the Tribunal member had a pre-existing state of mind which disabled her from undertaking or rendered her unwilling to undertake any proper evaluation of the relevant materials before her ( Minister for Multicultural and Indigenous Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [35] and [72]) or that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at [27] . 28 I also accept that there is no evidence of any bias, apprehended or otherwise. An allegation of bias against the Tribunal is a serious one and should only be made where there are proper grounds: see SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19] . The Tribunal was entitled to arrive at the findings it made based on the evidence before it. I am of the opinion that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might not reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: cf Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . For those reasons, the first ground of appeal must be rejected.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Outcome: cited
I accept the first respondent's submissions in respect to the first ground of appeal. There is nothing unreasonable in the Tribunal's evaluation of the evidence before it. There was evidence to which the Tribunal referred that allowed for a conclusion that the appellant's claims were not plausible. He and his family had lived in the same residence (whilst in Lithuania) since 1998 or 1999. His wife worked. His son attended school. The appellant travelled to other parts of Europe, apparently without difficulty, and re-entered Lithuania, again apparently without difficulty. Whilst in those other countries, he had never taken the opportunity to apply for protection, notwithstanding his complaint that he has been subject to discrimination since 1984. On that evidence, the Tribunal could find that his claims were not plausible. That was not the only finding that was open but it was open. As the first respondent rightly contends, in the absence of any manifest unreasonableness or illogicality ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 and 368; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [115] ; see also Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [137] - [138] ), the findings made by the Tribunal are findings of fact which should not be disturbed by this Court on appeal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 36.
Case: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 
Outcome: cited
I also accept that there is no evidence of any bias, apprehended or otherwise. An allegation of bias against the Tribunal is a serious one and should only be made where there are proper grounds: see SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19] . The Tribunal was entitled to arrive at the findings it made based on the evidence before it. I am of the opinion that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might not reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: cf Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . For those reasons, the first ground of appeal must be rejected.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
The appellant also made oral submissions in support of this ground. In those submissions he referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152. 17 In his submissions, the appellant referred to the Tribunal's decision where the Tribunal states: [I]t is not consistent with those claims, namely that the police were persecuting him and fabricating charges against him, that the applicant left his country without difficulty to come to Australia in January 2003. 18 The appellant referred in his written submissions to the transcript of the Tribunal hearing: (i) Tribunal: "By the way, did you have any difficulties making exiting your country? You went together, is that right"? (ii) Appellant: "We did not go together. I left on my own because it took some time and the wife had to stay and fanalise (sic) the sell of the unit and also, that was one reason and the other reason was that I was afraid to be seen in the airport that we were living at once that there will not be any implications. (iii) Appellant: "I did not break any laws ... I just do not know what they are capable of, what to expect. It was just my means of precautions". (iv) Tribunal: "But you did not have any ... you just exited on your passport without any difficulties is that what happened?" (v) Appellant: "Yes, that's right. I think it was one of the main aim of the police, sort of police and they achieved". 29 There is nothing before me to indicate that the Tribunal did not comply with its statutory obligations under s 425 of the Act. The Tribunal was not under any obligation to give the appellant "a running commentary upon what it thinks about the evidence": SZBEL [2006] HCA 63 ; 228 CLR 152 at [48] . 30 This ground of appeal also fails. 31 This ground asserts that the Tribunal's finding is based upon the exchange in the hearing to which I have referred. That may or may not be the case. The Tribunal might have concluded that the appellant did not have difficulty leaving Lithuania for any of three reasons. It might have relied on the evidence to which reference has been made. It might also have simply been observing that the appellant was not prevented from leaving by border authorities. It might also have been relying upon the appellant's own evidence which showed that he had travelled extensively with no suggestion that leaving Lithuania involved any difficulty. However, I will assume that the Tribunal reasoned in the way the appellant complains.
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
In respect to the second ground of appeal, the first respondent submitted that there was no error in the finding made by the Federal Magistrate and that the information complained of fell within the ambit of s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [41] [64]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at [48] ; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] . The first respondent further contended in reliance upon SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 that, in any event, the information itself did not form part of the reason for decision but rather it was the Tribunal's appraisal of that information as being inconsistent with the appellant's claims to have suffered past persecution that was the reason for decision. 34 In any event, the information itself did not form part of the reasons for decision because it did not, in its terms, constitute a denial or undermining of the appellant's claims to being a refugee: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; 235 ALR 609 at [17] . 35 For those reasons, I find that there was no error in the Federal Magistrate's decision because in answering the Tribunal's question the appellant was thereby providing this information to the Tribunal pursuant to s 424A(3)(b). 36 The second ground of appeal also fails.
Case: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435
Outcome: distinguished
The appellant referred to the decision of Rares J in SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [32] in support of his submissions: The reasons for the decision are not made into information given by the applicant 'for the purpose of the application' simply because the applicant for review makes an application under s 412. It is pursuant to s 414 of the Act that the original decision, not the reasons for it, is before the Tribunal for review and its statutory function is to review the decision. In conducting that review the Tribunal must conform to the requirements in the Act for the exercise of its jurisdiction, including the requirements of...s 424A. 23 The appellant argued that the information of which he now complains was not before the original decision maker as it had not been submitted with his original application and, for that reason also, was not information given for the purpose of the application. 24 The first respondent has addressed both grounds of appeal. The first respondent submitted that the evidence relied upon by the Tribunal formed a sufficient basis for finding that the appellant's claims were not plausible, notwithstanding that alternative inferences may have been open. The first respondent contended that the findings were not perverse or otherwise unreasonable in the sense of being contrary to all of the probative material before the Tribunal. 33 The decision of Rares J in SZGGT [2006] FCA 435 to which the appellant has referred does not assist the appellant. Justice Rares' dicta was directed to a contention that in "applying for a review of the delegate's decision, that decision itself is 'information that the applicant gave for the purpose of the application' . " This is not a case where the applicant for a protection visa provided information to a delegate which was subsequently used by the Tribunal. This is a case where the appellant provided the information to the Tribunal itself.
Case: Hayes Knight GTO Pty Ltd v Australian Securities &amp; Investments Commission [2005] FCA 1509
Outcome: cited
On 26 October 2005 Siopis J dismissed Hayes Knight's interlocutory application in the Judicial Review Proceedings seeking the provision by ASIC of reasons for its decisions of 3 August 2005. His Honour did, however, make an order that ASIC give discovery of documents relating to its decision: Hayes Knight GTO Pty Ltd v Australian Securities &amp; Investments Commission [2005] FCA 1509.
Case: Re Greys Brewery Company (1883) 2 Ch D 400
Outcome: cited
Statutory powers of examination of persons in connection with the affairs of bankrupts predated the creation of such powers with respect to the affairs of companies. What has been called the first bankruptcy statute in England, the 1842 Act, 34 and 35 Hen VIII c 4, provided for the examination of third persons about a debtor's estate. The earliest such provision in the companies laws of the United Kingdom was s 15 of the Joint Stock Companies Winding Up Act 1844 (UK) (7 and 8 Vict 111). Of that provision it is said in the 5 th Edition of McPherson's Law of Company Liquidation (Thomson, at 15.500): 'It empowered the court to summon and examine persons who were thought to be capable of giving information about the property and past transactions of the company. But the primary purpose of examinations of this kind was to assist the liquidator in locating the assets.' Like powers were conferred by s 115 of the Companies Act 1862 (UK) (25 and 26 Vict c 89). By that section the court was given power to summon before it any person whom it might deem capable of giving information concerning the trade dealings, estate, or effects of the company. The examination was in private. It was referred to by Chitty J as the "Star Chamber" clause: Re Greys Brewery Company (1883) 25 Ch D 400 at 408. It was analogous to s 120 of the Bankruptcy Law Consolidation Act 1849 (UK) (12 &amp; 13 Vict 106) which was in force when the 1862 Act was passed. Sir George Jessell MR in Re Gold Company (1879) 12 Ch D 77 at 85 said: 'In fact the whole object of the section is to assimilate the practice in winding-up to the practice in bankruptcy, which was established in order to enable assignees, who are now called trustees, in bankruptcy to find out facts before they brought an action, so as to avoid incurring the expense of some hundreds of pounds in bringing an unsuccessful action, when they might, by examining a witness or two, have discovered at a trifling expense that an action could not succeed.'
Case: Re Gold Company (1879) 12 Ch D 77
Outcome: cited
Statutory powers of examination of persons in connection with the affairs of bankrupts predated the creation of such powers with respect to the affairs of companies. What has been called the first bankruptcy statute in England, the 1842 Act, 34 and 35 Hen VIII c 4, provided for the examination of third persons about a debtor's estate. The earliest such provision in the companies laws of the United Kingdom was s 15 of the Joint Stock Companies Winding Up Act 1844 (UK) (7 and 8 Vict 111). Of that provision it is said in the 5 th Edition of McPherson's Law of Company Liquidation (Thomson, at 15.500): 'It empowered the court to summon and examine persons who were thought to be capable of giving information about the property and past transactions of the company. But the primary purpose of examinations of this kind was to assist the liquidator in locating the assets.' Like powers were conferred by s 115 of the Companies Act 1862 (UK) (25 and 26 Vict c 89). By that section the court was given power to summon before it any person whom it might deem capable of giving information concerning the trade dealings, estate, or effects of the company. The examination was in private. It was referred to by Chitty J as the "Star Chamber" clause: Re Greys Brewery Company (1883) 25 Ch D 400 at 408. It was analogous to s 120 of the Bankruptcy Law Consolidation Act 1849 (UK) (12 &amp; 13 Vict 106) which was in force when the 1862 Act was passed. Sir George Jessell MR in Re Gold Company (1879) 12 Ch D 77 at 85 said: 'In fact the whole object of the section is to assimilate the practice in winding-up to the practice in bankruptcy, which was established in order to enable assignees, who are now called trustees, in bankruptcy to find out facts before they brought an action, so as to avoid incurring the expense of some hundreds of pounds in bringing an unsuccessful action, when they might, by examining a witness or two, have discovered at a trifling expense that an action could not succeed.'