mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Luu v Renevier (1989) 91 ALR 39 
Outcome: referred to
applicant, while acknowledging that the Tribunal is under no general duty with respect to making inquiries, referred nevertheless to what was said by Wilcox J in Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 170, that a failure to inquire may, in exceptional circumstances, invalidate a decision. The effect of what Wilcox J said in Prasad at 169 170 is that there may be Wednesbury unreasonableness where it is obvious that there is material that is readily available to the decision-maker that is centrally relevant to an issue for determination. Prasad was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 198 per Black CJ; C v T (1995) 58 FCR 1 ; see too Minister for Immigration &amp; Citizenship v Le (Kenny J) [2007] FCA 1318 ; (2007) 164 FCR 151 at [65] [67].
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 
Outcome: referred to
Minister submitted that there is no basis to suggest that the Tribunal did not apply a standard of balance of probabilities. The real complaint, according to the Minister, appears to be that the Tribunal had regard to the housing department records and police intelligence reports when finding that the applicant failed the character test in s 501(6)(c). As the Tribunal found that the applicant failed the test in s 501(6)(a) any error in also finding that the applicant failed the test in s 501(6)(c) is irrelevant. In any case, there was no reason why the Tribunal could not have regard to the housing department records and police intelligence reports. As it noted, they indicated similar behaviour to that for which the applicant had been convicted: [156]. According to the Minister, there is no error in the Tribunal's statement at [168] [169] that a substantial number of similar reports from a wide variety of different sources detailing similar conduct increases the probability that the overall picture is true. This is perfectly rational reasoning in the circumstances of this case. The weight to be attributed to particular evidence was a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J. Given the nature of the applicant's convictions there was no reason why the Tribunal could not also have regard to other evidence of similar behaviour by the applicant when considering s 501(6)(c). In the circumstances of this case the Tribunal was not finding criminal conduct in the absence of a conviction on 'slight material' (as cautioned against in Baker at 194C), it was finding that the applicant failed to satisfy the character tests in s 501(6)(a) and (c) 'on the basis of the evidence': [169], which included the applicant's criminal convictions as well as the housing department records and police intelligence reports. As 'criminal conduct' and 'general conduct' are not a dichotomy and may overlap, the Minister submitted that it was perfectly appropriate for the Tribunal to consider both together: Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 440 at [33] [35].
Case: Minister for Immigration &amp; Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 
Outcome: cited
applicant, while acknowledging that the Tribunal is under no general duty with respect to making inquiries, referred nevertheless to what was said by Wilcox J in Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 170, that a failure to inquire may, in exceptional circumstances, invalidate a decision. The effect of what Wilcox J said in Prasad at 169 170 is that there may be Wednesbury unreasonableness where it is obvious that there is material that is readily available to the decision-maker that is centrally relevant to an issue for determination. Prasad was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 198 per Black CJ; C v T (1995) 58 FCR 1 ; see too Minister for Immigration &amp; Citizenship v Le (Kenny J) [2007] FCA 1318 ; (2007) 164 FCR 151 at [65] [67].
Case: Minister for Immigration &amp; Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666
Outcome: referred to
applicant observed that facts relevant to a tribunal decision are required to be established on the balance of probabilities: Minister for Immigration &amp; Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666 ; Re Kirby and Collector of Customs (1989) 20 ALD 369. The only reference to an applicable standard of proof in Direction No 21 is in para 1.9(a) dealing with 'past and present general conduct' which refers to 'business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis are disreputable ...'. According to the applicant, this suggests that when considering whether criminal conduct (of any kind) can be taken into account for the purpose of s 501 of the Act, the Minister (and the Tribunal) is required to apply the standard of proof known as 'the balance of probabilities'. Reference was made to what Deane J said in Pochi at 685: '[T]he Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr. Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation.' and to the Full Court in Baker , that 'satisfaction that criminal conduct has occurred will not be attained on slight material'.
Case: NAOA v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 241 
Outcome: cited
response to the applicant's claim that the Tribunal was obliged to seek specific comment from the applicant about each allegation contained in the police intelligence reports and the housing department records, the Minister submitted that procedural fairness does not so require; it must have been obvious to the applicant that the Tribunal may rely on the allegations contained in these reports and records as they were in evidence before the Tribunal: cf. Puafisi v Minister for Immigration &amp; Citizenship [2008] FCAFC 39 at [14] . Moreover, the gist of the allegations contained therein was put to the applicant, and the Tribunal's conclusions from the reports and records were obvious so as not to require specific disclosure: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 592; Pilbara Aboriginal Land Council v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 555 557, referred to with approval in NAOA v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 241 at [25] [28]; Puafisi at [20] [23]. It follows, the Minister submitted, that neither more particulars of that evidence nor the Tribunal's conclusions based on that evidence were required to be put to the applicant.
Case: Ngaronoa v Minister for Immigration &amp; Citizenship [2007] FCA 1565 
Outcome: considered
Minister submitted that the case put by the applicant on this point is similar to that rejected in Ngaronoa v Minister for Immigration &amp; Citizenship [2007] FCA 1565 (Jacobson J) at [47] [65], affirmed [2007] FCAFC 196 ; (2007) 244 ALR 119 at [10] [12]. While concerning a decision of the Minister personally, the Court stressed the width of the discretion in s 501 and the fact that weight to be attached to evidence was a matter for the decision-maker, in holding that it was open to consider charges for which an applicant had been acquitted in considering the exercise of discretion under s 501(2). Both Jacobson J at [60] and the Full Court at [10] [12] proceeded on the basis that the real issue was whether the Minister had acted capriciously in taking into account the charges for which the applicant had been acquitted, and concluded that he had not. Still less can the Tribunal here be said to have acted capriciously in taking into account material which was obviously relevant. Analysis
Case: Ngaronoa v Minister for Immigration &amp; Citizenship [2007] FCAFC 196 ; (2007) 244 ALR 119
Outcome: referred to
Minister submitted that the case put by the applicant on this point is similar to that rejected in Ngaronoa v Minister for Immigration &amp; Citizenship [2007] FCA 1565 (Jacobson J) at [47] [65], affirmed [2007] FCAFC 196 ; (2007) 244 ALR 119 at [10] [12]. While concerning a decision of the Minister personally, the Court stressed the width of the discretion in s 501 and the fact that weight to be attached to evidence was a matter for the decision-maker, in holding that it was open to consider charges for which an applicant had been acquitted in considering the exercise of discretion under s 501(2). Both Jacobson J at [60] and the Full Court at [10] [12] proceeded on the basis that the real issue was whether the Minister had acted capriciously in taking into account the charges for which the applicant had been acquitted, and concluded that he had not. Still less can the Tribunal here be said to have acted capriciously in taking into account material which was obviously relevant. Analysis
Case: Pilbara Aboriginal Land Council v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 
Outcome: referred to
response to the applicant's claim that the Tribunal was obliged to seek specific comment from the applicant about each allegation contained in the police intelligence reports and the housing department records, the Minister submitted that procedural fairness does not so require; it must have been obvious to the applicant that the Tribunal may rely on the allegations contained in these reports and records as they were in evidence before the Tribunal: cf. Puafisi v Minister for Immigration &amp; Citizenship [2008] FCAFC 39 at [14] . Moreover, the gist of the allegations contained therein was put to the applicant, and the Tribunal's conclusions from the reports and records were obvious so as not to require specific disclosure: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 592; Pilbara Aboriginal Land Council v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 555 557, referred to with approval in NAOA v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 241 at [25] [28]; Puafisi at [20] [23]. It follows, the Minister submitted, that neither more particulars of that evidence nor the Tribunal's conclusions based on that evidence were required to be put to the applicant.
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 
Outcome: considered
applicant, while acknowledging that the Tribunal is under no general duty with respect to making inquiries, referred nevertheless to what was said by Wilcox J in Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 170, that a failure to inquire may, in exceptional circumstances, invalidate a decision. The effect of what Wilcox J said in Prasad at 169 170 is that there may be Wednesbury unreasonableness where it is obvious that there is material that is readily available to the decision-maker that is centrally relevant to an issue for determination. Prasad was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 198 per Black CJ; C v T (1995) 58 FCR 1 ; see too Minister for Immigration &amp; Citizenship v Le (Kenny J) [2007] FCA 1318 ; (2007) 164 FCR 151 at [65] [67]. The first difficulty with this ground in the present case is that what was said by Wilcox J in Prasad at 169 170 is to be confined to exceptional circumstances; to circumstances which Wilcox J himself described as 'strictly limited'; where it is obvious that there is material that is readily available to the decision-maker that is centrally relevant to an issue for determination. In other words, there is a dual requirement: first, that it is 'obvious' that there is material centrally relevant to an issue for determination; and second, that that material is 'readily available'. Only if both requirements are satisfied would the 'strictly limited' circumstances exist. Neither requirement of the 'strictly limited' circumstances in Prasad has been made out and this ground cannot sustain the application for review. GROUND 7 Applicant's Submissions Under this ground, the applicant submitted that the Tribunal's discretion under s 501(2) of the Act miscarried either because it did not properly take into account relevant considerations, namely, the mandatory considerations specified in Part 2 of Direction No 21 (para 2.3), or because it took into account extraneous or irrelevant considerations, namely, police intelligence reports and housing department records concerning the applicant. So submitted, the alternative limb of this ground is the same as the alleged error identified in ground 4 albeit in relation to the Tribunal's conclusion that the applicant failed the character test under ss 501(6)(c)(i) and/or 501(6)(c)(ii), whereas the alternative limb under this ground goes to the allegation that the Tribunal's exercise of the discretion miscarried. Analysis However, as noted in [34] above, this ground as crafted in the amended application for review, is not put in the alternative. It is crafted on the basis that relevant considerations were not properly taken into account because irrelevant considerations were taken into account. So construed it cannot sustain the application for review. I therefore propose to deal with it on the basis pressed in the submissions.
Case: Puafisi v Minister for Immigration &amp; Citizenship [2008] FCAFC 39
Outcome: referred to
response to the applicant's claim that the Tribunal was obliged to seek specific comment from the applicant about each allegation contained in the police intelligence reports and the housing department records, the Minister submitted that procedural fairness does not so require; it must have been obvious to the applicant that the Tribunal may rely on the allegations contained in these reports and records as they were in evidence before the Tribunal: cf. Puafisi v Minister for Immigration &amp; Citizenship [2008] FCAFC 39 at [14] . Moreover, the gist of the allegations contained therein was put to the applicant, and the Tribunal's conclusions from the reports and records were obvious so as not to require specific disclosure: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 592; Pilbara Aboriginal Land Council v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 555 557, referred to with approval in NAOA v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 241 at [25] [28]; Puafisi at [20] [23]. It follows, the Minister submitted, that neither more particulars of that evidence nor the Tribunal's conclusions based on that evidence were required to be put to the applicant.
Case: Re Kirby and Collector of Customs (1989) 20 ALD 369 
Outcome: cited
applicant observed that facts relevant to a tribunal decision are required to be established on the balance of probabilities: Minister for Immigration &amp; Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666 ; Re Kirby and Collector of Customs (1989) 20 ALD 369. The only reference to an applicable standard of proof in Direction No 21 is in para 1.9(a) dealing with 'past and present general conduct' which refers to 'business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis are disreputable ...'. According to the applicant, this suggests that when considering whether criminal conduct (of any kind) can be taken into account for the purpose of s 501 of the Act, the Minister (and the Tribunal) is required to apply the standard of proof known as 'the balance of probabilities'.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: referred to
applicant further submitted that having regarded the information as significant, the Tribunal was bound to accord the applicant an opportunity to deal with it: see Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 96. Even if the evidence was given no weight (unlike here), there was a real risk of prejudice arising from the admission of the evidence (see Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 and Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL at 96 - 97). Because the exercise of the statutory power is conditioned upon the provision of procedural fairness, the denial of procedural fairness in this case vitiates the Tribunal's decision (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ).
Case: Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: referred to
the evidence from Detective Inspector Galea was consistent with what had earlier been put to the applicant and he was specifically cross-examined on it on the applicant's behalf, there cannot, the Minister submitted, be any unfairness in this case. The Minister further observed that it was obvious that the applicant would deny being a significant drug dealer in Airds because she had previously denied dealing drugs at all; and her representative in closing submissions specifically denied that the applicant was a 'significant player in the drug trade', or indeed a dealer at all. The Minister submitted that the applicant did not need to be specifically recalled to deny the allegation herself; the rule in Browne v Dunn does not apply to inquisitorial tribunals: Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ; and that there was no unfairness in the Tribunal's reception of the evidence from Detective Inspector Galea. Analysis
Case: Seyfarth v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 105 ; (2005) 142 FCR 580
Outcome: applied
5 alleges that the Tribunal erred in finding that the applicant failed the character test under ss 501(6)(a) and 501 (7) of the Act on the basis that she had a 'substantial criminal record' for the purposes of s 501(6)(a) by reason of the fact that the applicant had received two suspended sentences of 12 months' imprisonment because a suspended sentence is not 'a term of imprisonment of 12 months or more' for the purposes of s 501(7). This ground was only formally pressed because the applicant's counsel rightly accepted that this Court was bound by the decision of the Full Court in Seyfarth v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 105 ; (2005) 142 FCR 580 at [27] where the Full Court decided that s 501(7)(c) is concerned with the sentence that has been imposed on the person rather than the term of imprisonment actually served. In the circumstances, it is unnecessary to return to this ground. Ground 6 alleges that the decision of the Tribunal was vitiated by the failure of the Minister's delegate and the Tribunal to inquire as to the sentencing remarks in relation to each of the applicant's convictions in circumstances where it was unreasonable for it not to make the straightforward administrative inquiry into those matters. Ground 7 alleges that the Tribunal's exercise of the discretion under s 501(2) miscarried because it did not properly take into account a relevant consideration, namely, the protection of the Australian community and the expectations of the Australian community; two of the three primary considerations referred to in para 2.3 of Direction No 21 (see [26] above). The way the ground is crafted alleges that these primary considerations were not taken into account because the Tribunal took into account irrelevant considerations the police intelligence reports and housing department records concerning the applicant but the applicant's submissions were pressed in the alternative: that the Tribunal's discretion miscarried because it failed to take into account relevant considerations or took into account irrelevant considerations.
Case: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 
Outcome: cited
applicant, while acknowledging that the Tribunal is under no general duty with respect to making inquiries, referred nevertheless to what was said by Wilcox J in Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 170, that a failure to inquire may, in exceptional circumstances, invalidate a decision. The effect of what Wilcox J said in Prasad at 169 170 is that there may be Wednesbury unreasonableness where it is obvious that there is material that is readily available to the decision-maker that is centrally relevant to an issue for determination. Prasad was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 198 per Black CJ; C v T (1995) 58 FCR 1 ; see too Minister for Immigration &amp; Citizenship v Le (Kenny J) [2007] FCA 1318 ; (2007) 164 FCR 151 at [65] [67].
Case: Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 440
Outcome: referred to
Minister submitted that there is no basis to suggest that the Tribunal did not apply a standard of balance of probabilities. The real complaint, according to the Minister, appears to be that the Tribunal had regard to the housing department records and police intelligence reports when finding that the applicant failed the character test in s 501(6)(c). As the Tribunal found that the applicant failed the test in s 501(6)(a) any error in also finding that the applicant failed the test in s 501(6)(c) is irrelevant. In any case, there was no reason why the Tribunal could not have regard to the housing department records and police intelligence reports. As it noted, they indicated similar behaviour to that for which the applicant had been convicted: [156]. According to the Minister, there is no error in the Tribunal's statement at [168] [169] that a substantial number of similar reports from a wide variety of different sources detailing similar conduct increases the probability that the overall picture is true. This is perfectly rational reasoning in the circumstances of this case. The weight to be attributed to particular evidence was a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J. Given the nature of the applicant's convictions there was no reason why the Tribunal could not also have regard to other evidence of similar behaviour by the applicant when considering s 501(6)(c). In the circumstances of this case the Tribunal was not finding criminal conduct in the absence of a conviction on 'slight material' (as cautioned against in Baker at 194C), it was finding that the applicant failed to satisfy the character tests in s 501(6)(a) and (c) 'on the basis of the evidence': [169], which included the applicant's criminal convictions as well as the housing department records and police intelligence reports. As 'criminal conduct' and 'general conduct' are not a dichotomy and may overlap, the Minister submitted that it was perfectly appropriate for the Tribunal to consider both together: Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 440 at [33] [35].