mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Thurecht v Deputy Commissioner of Taxation (1984) 3 FCR 570 ; 84 ATC 4480 ; 15 ATR 822
Outcome: considered
Proceedings against a Deputy Commissioner of Taxation are not relevantly different for present purposes to proceedings against other Commonwealth office holders or decision-makers. But Deputy Commissioners have attracted in the past allegations of serious wrongdoing. Thus, for example, in Thurecht v Deputy Commissioner of Taxation (1984) 3 FCR 570 ; 84 ATC 4480 ; 15 ATR 822 there was an allegation that a statutory power had been exercised in " bad faith " by reason of the Deputy Commissioner seeking to make an example of the applicants. Sheppard J referred to the evidence and summarised the allegations as follows (at 587): ... it is capable of suggesting that there had in fact been decided upon at a high level in Canberra, a policy designed to disadvantage -- really to punish -- those who had had the temerity to force the Commissioner's hand by making applications for writs of mandamus. That policy was designed to ensure that anybody else minded to make such an application would be discouraged from doing so. That is the applicants' case. The question is whether I should accept it. The allegation was rejected. There was no suggestion, however, in that case that public confidence in this Court would have been enhanced if those facts relevant to the resolution of such an allegation had been resolved by a jury. 45 The conferral by the Commonwealth legislature of such jurisdiction as that conferred by the 1976 Act upon this Court is only consistent with a legislative recognition that this Court will impartially and independently determine each case which comes before it, including litigation in which the Commonwealth or its instrumentalities may be respondents. No submission was advanced, nor could it be advanced, that there is any lack of public confidence in the manner in which this Court resolves contentious disputes involving allegations of misconduct or the pursuit of improper purposes by the Commonwealth or its instrumentalities; nor is it considered that public confidence in the administration of justice by this Court would be enhanced if such applications were to be heard by Judge and jury.
Case: Vink v Tuckwell (No 3) [2008] VSC 316
Outcome: followed
Although this Court has expressed greater reluctance to order indemnity costs against an unrepresented litigant, it may do so: Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [20] and [26] per Kenny J. In Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594 Heerey J relevantly observed: [7] In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. ... See also: Vink v Tuckwell (No 3) [2008] VSC 316 at [103] [108] per Robson J.
Case: Weininger v The Queen [2003] HCA 14 , 212 CLR 629
Outcome: followed
Section 80 , it may readily be accepted, " lays down ... a fundamental law of the Commonwealth ": R v Snow [1915] HCA 90 ; (1915) 20 CLR 315 at 323 per Griffith CJ. The entitlement conferred by that provision " is an important constitutional privilege ": Weininger v The Queen [2003] HCA 14 at [54] , [2003] HCA 14 ; 212 CLR 629 at 646.
Case: Wilson v Deputy Commissioner of Taxation [2003] HCA Trans 403
Outcome: considered
The rejection of this contention of the Applicant -- even had it been advanced -- is not only dictated by the terms of s 80 itself, as it has been interpreted; it is further dictated by the rejection of the same argument by the High Court: Wilson v Deputy Commissioner of Taxation [2003] HCA Trans 403. 26 Consistent with the abandonment of reliance upon s 80 of the Constitution as the source of any entitlement to have this Court hear the Application before it by Judge and jury, the relief as sought in the Notice of Motion as filed on 8 September 2008 sought to place reliance upon ss 30 and 31 of the Bankruptcy Act . Reference was also made to ss 39 and 40 of the Federal Court of Australia Act -- but those provisions, it was contended by the Applicant, were " qualified or not determinative of jury usage to decide factual questions in bankruptcy cases ".
Case: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: distinguished
Finally, I wish to say a brief word about an authority cited by the appellant during the hearing. Appearing on her own behalf, the appellant referred to one case in support of her argument. The case, Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 , is one where the Full Court allowed an appeal on multiple grounds, including failure of the tribunal to comply with the requirements of s 424A. Unfortunately for the appellant, the case does not significantly advance her claims in the matter before me now. 14 In M164 , the tribunal had noted and relied on inconsistencies between direct oral testimony of the applicant and conflicting testimony by the applicant's husband. Though the husband's testimony was given at the hearing and in the presence of the applicant, the Full Court found that, under a strict reading of s 424A , the applicant was to be given notice, in writing, of the tribunal's intended reliance on discrepancies between the husband's testimony and the applicant's testimony: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] - [100] . 15 In the instant case, the hearing-testimony relied upon by the tribunal came directly from the appellant, herself, and was therefore exempted under s 424A(3)(b) as information that "the applicant gave." There was no third party testimony cited or relied upon by the tribunal in reaching its decision. 16 The appeal will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 2 June 2006 First appellant in person. Counsel for the First Respondent: Ms S Burchell Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 3 May 2006 Date of Judgment: 2 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/728.html
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: discussed
In fact it is not the appellant but the first respondent who has raised the possibility that the tribunal decision may have been based on information not provided to the appellant under s 424A. The first respondent's counsel referred to decisions in the High Court to the effect that the tribunal must strictly comply with s 424A (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162). Thus, any finding that information was not properly provided would be a jurisdictional error and the tribunal's decision would necessarily be vacated by this Court. 6 The first instance involves the dates on which the Sri Lanka Provincial Council elections occurred. The tribunal states in its Findings and Reasons: "[t]he applicant had submitted in her protection visa application lodged in July 1999 that she had been recently involved in the Provincial Council election campaigns but stated at the hearing that she assisted with the 1996 Provincial Council elections. There were, however, no such elections in 1996; rather these occurred in 1999, in the months before her departure for Australia." The tribunal then went on to explain that this inconsistency was one consideration that led the tribunal to doubt the truth of the appellant's story. 12 Since I have determined that the "information" in question all qualifies under the statutory exemption in s 424A(3) , it is not necessary to examine the specifics of whether and how the information was relayed to the appellant. I do note, however, that the High Court's ruling in SAAP makes it clear that any information required under s 424A must be given to an applicant in writing : see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 183 per McHugh J; at 196 per Gummow J; at 205 per Hayne J. This would be necessary even in a situation where the tribunal discusses adverse information with an applicant during the hearing and gives the applicant an opportunity to comment. Thus, were any of the information at issue in this case not subject to exemption under s 424A(3) , the appellant might very well have succeeded in her appeal.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: cited
At first blush, it might appear that the tribunal was comparing written information from the appellant's visa application with the appellant's testimony at the hearing. In its reasons, however, the tribunal explained that the appellant's visa application was merely the medium that raised the issue for the tribunal: see eg SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [49] - [50] per Moore J; at [244] per Allsop J. The inconsistency itself arose between the appellant's testimony that she participated in 1996 Provincial Council elections, and the independent country information stating that the scheduled 1996 elections never occurred and were, instead, postponed until nearly 1999: see ibid. Thus, the information which is relevant for the purposes of s 424A is the independent country information and the appellant's hearing testimony. 8 Section 424A(3)(b) provides that information given by an applicant for the purpose of the application is exempted from the disclosure requirements of s 424A. While some cases might call into question when, specifically, information is given "for the purpose of the application", I think it is beyond question that testimony given by an applicant in a statutory hearing pursuant to s 425 of the Migration Act is given in support of, and therefore "for the purpose of", the application.
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: followed
Similarly, with regard to independent country information, s 424A(3)(a) exempts such general information from the requirements of s 424A when it is not specifically about the applicant or another person. This is established by numerous Full Court authorities: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 ; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559 at 562-563 per Gyles and Conti JJ, at 564 per Allsop J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168. Thus, with regard to the first instance of possible error, I find no violation of s 424A by the tribunal.
Case: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559
Outcome: followed
Similarly, with regard to independent country information, s 424A(3)(a) exempts such general information from the requirements of s 424A when it is not specifically about the applicant or another person. This is established by numerous Full Court authorities: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 ; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559 at 562-563 per Gyles and Conti JJ, at 564 per Allsop J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168. Thus, with regard to the first instance of possible error, I find no violation of s 424A by the tribunal.
Case: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Outcome: followed
Similarly, with regard to independent country information, s 424A(3)(a) exempts such general information from the requirements of s 424A when it is not specifically about the applicant or another person. This is established by numerous Full Court authorities: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 ; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559 at 562-563 per Gyles and Conti JJ, at 564 per Allsop J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168. Thus, with regard to the first instance of possible error, I find no violation of s 424A by the tribunal.
Case: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Outcome: cited
Magistrate Raphael said that, in his opinion, this was not a case where the need for further inquiry was so obvious and no impediment to the conduct of the inquiry was apparent, so that the failure of the Tribunal to proceed without making enquiries constituted unreasonable conduct within Prasad . His Honour noted that it was the appellant's responsibility to make his own case and to provide sufficient information to the Tribunal that would enable the Tribunal to come to the requisite state of satisfaction ( Abebe v Commonwealth of Australia (1999) 197 CLR 510). Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims ( Abebe at [187] per Gummow and Hayne JJ). It is not for the Tribunal to make the appellant's case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his "nursemaid" ( Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at [199] [200] per Allsop and Graham JJ appeal allowed by the High Court but not on this point).
Case: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151
Outcome: referred to
Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal ( SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12] ). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 , which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries ( SZHUH at [11] per Perram J). His Honour noted that in SZHUH , Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508 ; [2008] FCA 1803.
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365
Outcome: cited
it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims ( Abebe at [187] per Gummow and Hayne JJ). It is not for the Tribunal to make the appellant's case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his "nursemaid" ( Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at [199] [200] per Allsop and Graham JJ appeal allowed by the High Court but not on this point).
Case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: referred to
Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal ( SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12] ). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 , which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries ( SZHUH at [11] per Perram J). His Honour noted that in SZHUH , Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508 ; [2008] FCA 1803. Federal Magistrate Raphael said that, in his opinion, this was not a case where the need for further inquiry was so obvious and no impediment to the conduct of the inquiry was apparent, so that the failure of the Tribunal to proceed without making enquiries constituted unreasonable conduct within Prasad . His Honour noted that it was the appellant's responsibility to make his own case and to provide sufficient information to the Tribunal that would enable the Tribunal to come to the requisite state of satisfaction ( Abebe v Commonwealth of Australia (1999) 197 CLR 510).
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609
Outcome: applied
the hearing, the Tribunal commented to the appellants that the deficiencies in the evidence relating to court case raised questions about the credibility of all the appellants' claims. The failure on the part of the appellants to provide details about the lawyer or the courts in Latvia constituted a defect in the material given to the Tribunal by the appellants. The lack of provision of those details formed part of the reasoning process of the Tribunal as it weighed the evidence as to the existence of the court case by reference to the available information. Neither the lawyer's contact details nor the fact that they were not given by the appellants to the Tribunal constitute information for the purposes of s 424A(1) of the [2007] HCA 26 ; Act ( SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] ). In any event, the existence or otherwise of the lawyer's details and the fact that the appellant did or did not have such details would have been information given to the Tribunal by the appellants within the meaning of s 424A(3)(b). The Tribunal did not contravene s 424A of the Act. Good faith
Case: SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893
Outcome: referred to
Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal ( SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12] ). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 , which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries ( SZHUH at [11] per Perram J). His Honour noted that in SZHUH , Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508 ; [2008] FCA 1803.
Case: SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508
Outcome: referred to
Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal ( SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12] ). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 , which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries ( SZHUH at [11] per Perram J). His Honour noted that in SZHUH , Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508 ; [2008] FCA 1803.
Case: SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103
Outcome: affirmed
Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal ( SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12] ). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 , which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries ( SZHUH at [11] per Perram J). His Honour noted that in SZHUH , Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508 ; [2008] FCA 1803.