mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.
Case: SAAG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 547
Outcome: distinguished
An instance of a decision of the Tribunal not having been made in good faith is provided by SAAG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 547. It was there concluded that the lack of good faith was established because the Tribunal had looked for reasons to reject the claim being advanced. Mansfield J there observed: [36] I am mindful that a finding that a decision of the Tribunal was not made in good faith will be exceptional. However, in this matter I have concluded that the Tribunal's decision was not made in good faith. I have reached that conclusion by inference from my consideration of the Tribunal's reasons as a whole, and not by taking any particular part of its reasons in isolation. I will not repeat the analysis of the Tribunal's reasons discussed above. In my judgment, its reasons go beyond the Tribunal making findings of fact or making observations which involve it making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant's claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant's claims. That conclusion is reached notwithstanding that in its consideration of the definition of "refugee" it has referred to the relevant decisions of the High Court and notwithstanding that, at the commencement of the "findings and reasons" section of its decision the Tribunal quotes the observations of Gummow and Hayne JJ in Abebe [v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510] at 577 578 set out in [29] above. At no point in its reasons thereafter do those considerations appear to attract any attention. Instead, each of the factors upon which the Tribunal relied to reject the applicant's claim as to his nationality demonstrates upon analysis in the ways I have referred to above a rigid and at times inexplicable finding adverse to him. ... Reference may also be made to His Honour's decision in SBAN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 591. But such is not the present case.
Case: Sathiyanathan v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 210
Outcome: applied
The appeal should be dismissed on that basis alone. Such a fundamental deficiency in a notice of appeal is not a mere matter of form; no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZLZM v Minister for Immigration &amp; Citizenship [2008] FCA 1263. In Sathiyanathan v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 210 , Finn, Marshall and Goldberg JJ likewise emphasised the appellate role of this Court. Their Honours were there addressing an appeal which did at least allege error on the part of the Federal Magistrate, but they did go on to make the following observations as to attempts to review in this Court the reasons of the Tribunal: [10] We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed [to] her Honour's decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant's submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge's reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons.
Case: SBAN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 591
Outcome: distinguished
An instance of a decision of the Tribunal not having been made in good faith is provided by SAAG v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 547. It was there concluded that the lack of good faith was established because the Tribunal had looked for reasons to reject the claim being advanced. Mansfield J there observed: [36] I am mindful that a finding that a decision of the Tribunal was not made in good faith will be exceptional. However, in this matter I have concluded that the Tribunal's decision was not made in good faith. I have reached that conclusion by inference from my consideration of the Tribunal's reasons as a whole, and not by taking any particular part of its reasons in isolation. I will not repeat the analysis of the Tribunal's reasons discussed above. In my judgment, its reasons go beyond the Tribunal making findings of fact or making observations which involve it making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant's claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant's claims. That conclusion is reached notwithstanding that in its consideration of the definition of "refugee" it has referred to the relevant decisions of the High Court and notwithstanding that, at the commencement of the "findings and reasons" section of its decision the Tribunal quotes the observations of Gummow and Hayne JJ in Abebe [v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510] at 577 578 set out in [29] above. At no point in its reasons thereafter do those considerations appear to attract any attention. Instead, each of the factors upon which the Tribunal relied to reject the applicant's claim as to his nationality demonstrates upon analysis in the ways I have referred to above a rigid and at times inexplicable finding adverse to him. ... Reference may also be made to His Honour's decision in SBAN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 591. But such is not the present case.
Case: SBAP v Refugee Review Tribunal [2002] FCA 590
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.
Case: SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.
Case: SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.
Case: SZJHE v Minister for Immigration [2008] FMCA 1299
Outcome: cited
A differently constituted Tribunal affirmed the delegate's decision on 30 November 2007. The Tribunal " did not find the applicant to be credible on some key aspects of his claims ". Instances were provided " of the inconsistencies, contradictions and implausibility that lead the Tribunal to conclude that the applicant is not a reliable witness in relation to certain aspects of his claims ". On 19 August 2008 the Federal Magistrates Court dismissed an application for review: SZJHE v Minister for Immigration [2008] FMCA 1299. 4 The Appellant now appeals to this Court. He appeared unrepresented during the course of the hearing on 24 November 2008, although he did have the benefit of an interpreter. He had also filed on 19 November 2008 a written Outline of Submissions . 5 The Grounds of Appeal to this Court (without alteration) are expressed as follows: 1. The Refugee Review Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act: Particulars A. The Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act that: i) the authority of India treated the LTTE as a terrorist organization and the members and supporters of this organization are the enemy of the nation. They were in the government's wanted list. 1. The Refugee Review Tribunal made the decision in bad faith: Particulars A. The Tribunal made the decision in bad faith by making the following comment that: i) the Tribunal did not find the applicant to be credible on some key aspects of his claims; and ii) the Tribunal did not accept that the applicant was of adverse interest to the Indian authorities. 2. The decision of the Refugee Review Tribunal did not give any weight to the response that I lodged under s424A of the Migration Act: Particulars A. The Tribunal asked me to provide a response for couples of things and I promptly response of those things that the Tribunal came into my attention. However the Tribunal did not give any weight to those documents and just came into conclusion whatever had to its mind. These Grounds of Appeal are a substantial repetition of the grounds as advanced before the Federal Magistrates Court. The Appellant's written submissions also substantially repeat that which is otherwise set forth in the Grounds of Appeal .