mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZEEU &amp; Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCA 214
Outcome: followed
awaited the judgment of the Full Court in SZEEU &amp; Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCA 214 before coming to my decision and gave the parties the opportunity of making submissions in light of that judgment. Counsel for the appellants then sought leave to further amend the notice of appeal by taking one ground as follows: '1. The Tribunal constructed a jurisdictional error when it failed to comply with s 424A of the M igration Act 1958 Cth Particulars (a) The Tribunal considered the following information was part of the reason for affirming the decision of the delegate to refuse the applicants protection visas: (i) The applicant husbands education and employment history provided in the protection visa record. (b) The Tribunal did not disclose the particulars of the information to the applicants in writing. (c) The information was not exempted from disclosure by s 424A(3)(b). (d) The information was specifically about the applicant husband.' The amendment was opposed on two bases. Firstly an entirely new point should not be permitted to be raised at this stage of an appeal in judicial review proceedings. Secondly the proposed ground raises a question of fact, namely, what was provided by or on behalf of the appellants to the Tribunal for the purposes of s 424A(3)(b). Counsel for the appellants submitted that it can be deduced from a reading of the decision of the Tribunal, taken with the documents which were before the Tribunal, that it had relied upon material supplied only in the visa application. However, counsel for the Minister correctly points out that that conclusion cannot be drawn in the absence of a transcript of what took place before the Tribunal. If the issue had been raised in the Federal Magistrates Court, the factual issue could and would have been properly investigated.
Case: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Outcome: followed
consequence is that the case for the appellants stands or falls upon the use by the Tribunal of country information concerning document fraud in Bangladesh without having complied with s 424A in relation to that information. That basis was rejected by the learned Federal Magistrate, based upon Full Court authority in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. Counsel for the Minister submits that authority since then has confirmed that position. It is sufficient to refer to QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.
Case: SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: applied
3 is that the Magistrate was in error in not determining that the Tribunal fell into jurisdictional error in failing to request more information regarding the applicant's activities in the Gitaben Rambhia Trust from the Trust itself. The Magistrate dismissed this complaint. In reliance on High Court and Full Court authority he observed that there is no obligation on the Tribunal to obtain further information. Section 424 empowers the Tribunal to obtain information, but it does not have a duty to investigate an applicant's claims. See SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [61] . This ground has no prospect of success. In her written submissions the applicant asserts another claim of want of procedural fairness, in that at [55], [57]-[59] and [61]-[62] of his reasons the Magistrate "failed to address the mandatory nature of the requirements of [s 65(1)], and in effect applied the test of compliance with the common law rules of natural justice to a statutory scheme". The Magistrate's reasons conclude at [59]. None of the paragraphs relied on deal with procedural fairness. However at [16] his Honour stated that s 422B(1) provides that Division 4 is an exhaustive statement of the natural justice hearing rule, and that no breach of that Division had been shown. The applicant's complaint that the codified natural justice scheme was not applied is baseless.
Case: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389
Outcome: cited
her written submission's the applicant claims that the Tribunal in failing to make specific findings failed to reach the required state of satisfaction or non-satisfaction as required by s 65(1). This complaint has no basis in fact. The Tribunal made specific findings about the claims and evidence before it. As it explained at [57] to [63] of its reasons, it did not accept most of those claims and evidence. The Magistrate said, correctly in my view, that once the Tribunal had found that the applicant did not satisfy the criteria for a visa, it was not required to make findings on all other matters that may have been raised in evidence. A Tribunal is not required to refer in its reasons to every item of evidence before it. Thus a failure to refer to a particular piece of evidence does not require a conclusion that it has been overlooked: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] . I need not pursue this matter further, because the applicant provided no particulars of the specific findings she said the Tribunal should have made.
Case: SZJDA v Minister for Immigration and Citizenship [2008] FCA 1093
Outcome: cited
my view none of the grounds in the draft notice of appeal or the written submissions has any prospect of success. All of them are quite without merit and would be bound to fail if an extension of time within which to appeal were granted. They have been propounded without any reference to the contents of the reasons of the Magistrate from whose decision the applicant seeks leave to appeal. Accordingly I refuse to grant an extension because it would be pointless to do so. Cf SZJDA v Minister for Immigration and Citizenship [2008] FCA 1093. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 21 August 2009 The applicants appeared in person Counsel for the First Respondent: David Brown Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 18 August 2009 Date of Judgment: 21 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/909.html
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
The principles to be applied in dealing with an application such as the present are laid down in D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 10 In my opinion the learned Magistrate's decision is not attended with sufficient doubt to warrant reconsideration by this Court. Moreover, were leave to be granted to appeal, there is no prospect that the applicant could succeed on the grounds on which he seeks to rely. 11 The application should be refused with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 16 February 2007 Counsel for the Appellant: Applicant appeared in person Counsel for the Respondent: Ms S Zarucki Solicitor for the Respondent: Clayton Utz Date of Hearing: 16 February 2007 Date of Judgment: 16 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/143.html
Case: Minister for Immigration &amp; Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
The fourth ground asserts that the Tribunal's findings were biased. There is no basis upon which I can conclude that the allegation of bias is 'distinctly made and clearly proved': Minister for Immigration &amp; Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 531, [69] per Gleeson CJ and Gummow J. There is simply no evidence to support such a contention. 23 As no arguable basis on which an appeal might succeed has been raised, the present application should be dismissed with costs. I will allow the first respondent to be correctly names at as the Minister for Immigration and Citizenship. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 20 February 2007 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 15 February 2007 Date of Judgment: 15 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/157.html
Case: SYLB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 87 ALD 498
Outcome: cited
In relation to the first ground, I agree with his Honour that there was no error of law in the Tribunal's finding that the applicant could relocate in India as it found that the persecution claimed to be suffered by the applicant was localised in rural areas. The Tribunal correctly applied the principles identified by Branson J in SYLB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 87 ALD 498, and assessed the personal considerations of the applicant to find that he could reasonably be expected to relocate within India. Therefore, no error arises in that regard. 19 The second purported ground of appeal alleges that s 424A of the Act was not applied correctly. I agree with the Federal Magistrate's finding that there was no breach by the Tribunal of s 424A. As his Honour found at [25], the information relied upon was independent country information, which falls within the exceptions in s 424A(3)(a) because it is information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. Furthermore, as his Honour noted, the Tribunal did put matters relating to the independent country information to the applicant at the hearing. 20 The three further grounds were not raised before the Federal Magistrate but can be considered on their merits. The third and fifth purported grounds in substance allege the same error and so I will consider the allegations together. As I have found above, the Tribunal put the independent country information to the applicant at the hearing. Even though it was not required to put such information to the applicant according to the exception in s 424A(3)(a) , the Tribunal clearly put the applicant on notice that it would be considering the independent country information and in these circumstances there can be no breach of procedural fairness or natural justice. 21 Further, I do not need to consider any common law rules relating to natural justice as s 422B of the Act was in force at the time the applicant made his application to the Tribunal on or about 10 June 2005.
Case: Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 
Outcome: cited
The Federal Magistrate held that reg 2.07 only requires substantial compliance with the directions in Form 866, not strict compliance (cf Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566; SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393). The Federal Magistrate held that significantly more than the "bare bones" of the appellant's claims were provided with the protection visa application and that there had therefore been substantial compliance.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v WAIK (2003) 79 ALD 152
Outcome: followed
Section 47 is included in Subdiv AA. It follows that non-compliance by the Minister with s 47(3) does not mean that the decision to refuse to grant the visa is not valid. In Minister for Immigration and Multicultural and Indigenous Affairs v WAIK (2003) 79 ALD 152, the Full Court was concerned with an application for a protection visa which was said to have been signed by a person under the age of 18 and therefore was not a valid application because it was not completed in accordance with the directions on the form (Form 866). The Full Court said at [29]-[31]: 29 However, s 69(1) is explicit so far as the requirements of subdiv AA and subdiv AB are concerned. In the light of s 69, it cannot be said that the application for a protection visa signed by the Applicant was a nullity simply because he did not complete it in accordance with the directions contained on it. No suggestion was made on behalf of the Applicant that he did not understand the nature of the application or that he did not have the capacity, even if he was under 18, to make an application for a protection visa. The only contention was that, because the application form was not completed in accordance with the directions contained on it, it was not a valid application by reason of the operation of reg 2.07(3) and that, accordingly, the Minister was prohibited, by s 47(2), from considering the application since it was not a valid application. 30 If an application that is not a valid application for the purposes of s 46 is considered pursuant to s 65, the resultant decision is preserved by s 69. The decision of the Minister's delegate purporting to reject the application is a valid decision, even if it involved a contravention of s 47, because the decision was rendered valid by the operation of s 69(1): see Thayananthan v Minister for Immigration and Multicultural Affairs [2001] FCA 831 ; (2001) 113 FCR 297 at 33 [26] and Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324 ; (2002) 122 FCR 578 at 593 [49] . 31 The Tribunal had jurisdiction to review the decision of the Minister's delegate under s 411(1)(c) because it was a decision to refuse to grant a protection visa. The fact that the Minister was prohibited by s 47(2) from considering the application, assuming that it was not a valid application, does not mean there was no decision within the meaning of s 411(1)(c). Whether or not the Minister was prohibited from considering the application, the Minister's delegate did so and made a decision to refuse a protection visa. There was no jurisdictional error on the part of the Tribunal even if the Applicant was under 18 and the application was not a valid application within the meaning of s 46 of the Act. That decision is both on point and binding.
Case: NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
Outcome: followed
The Federal Magistrate held that the appellant signed the statutory declaration although she was not aware she was signing a statutory declaration. He found that she did not read or speak English and that the statutory declaration was not translated to her. The Federal Magistrate held that as the appellant had an agent who was authorised to act for her at the time the form was completed and lodged, and that the appellant signed the form in three different places, there was substantial compliance, notwithstanding any deficiencies in the completion of the statutory declaration (cf NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199). In addition, he held that Parliament could not have intended such strict compliance, that the deficiencies noted in the statutory declaration would invalidate the application. He found the protection visa application to be valid. There was, therefore, no jurisdictional error. 20 In addition, the Federal Magistrate held that the Tribunal decision was a privative clause decision and, for that reason as well, the application had to be dismissed. That would, of course, follow from his first finding that there was no jurisdictional error. In the further alternative, he held that had he found any jurisdictional error, he would not have been minded to grant relief in the circumstances of the case as "the applicant effectively sat on her hands for three years after she made her protection visa application, doing very little to follow it up." 21 Finally, he noted that the migration agent had "handled the applicant's protection claim in a most unsatisfactory and unprofessional way" and therefore directed the Registrar of the Court to refer the papers in this matter to the Migration Agents Registration Authority. 35 A similar result was reached in NAWZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 199. In that case, the Full Court said at [17]-[18]: 17 We do not consider that the requirement in Reg 2.07 that the approved form must be completed 'in accordance with any directions on it' necessitates that any departure from those directions spells invalidity for an application. It is unlikely to have been the purpose of the legislation: cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 390-391; to require the automatic invalidity of a visa application that an applicant has caused another to complete: cf s 98; but which is unsigned, for example, because of the paralysis of the applicant or, for that matter, of the oversight of the applicant or of his or her agent: cf Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 at [32] . 18 We do not consider that the irregular manner of filling in and signing of the false application resulted in the invalidity of the application. It was a false application but it was, in formal terms, a valid application.
Case: SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 
Outcome: cited
The Federal Magistrate held that reg 2.07 only requires substantial compliance with the directions in Form 866, not strict compliance (cf Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566; SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393). The Federal Magistrate held that significantly more than the "bare bones" of the appellant's claims were provided with the protection visa application and that there had therefore been substantial compliance.
Case: Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245
Outcome: cited
The appellant did not have to strictly comply with reg 2.07 to create a valid application. Substantial compliance was sufficient: Bal v Minister for Immigration &amp; Multicultural Affairs 189 ALR 156; Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245. 37 It follows that the appellant's application was a valid application. It follows that both the delegate's decision and the Tribunal's decision on review were authorised by the Act. That was the conclusion of the Federal Magistrate. No error has been demonstrated. 38 The appeal must be dismissed and the appellant must pay the respondent's costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 5 September 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: Blake Dawson Waldron Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 20 August 2007 Date of Judgment: 5 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1338.html
Case: Jess v Scott (1986) 12 FCR 187
Outcome: followed
There is unquestionably a discretion to extend time if " special reasons " be shown. That expression in r 15(2) describes a flexible discretionary power, but a power requiring an applicant to nonetheless justify a departure from the ordinary rule prescribing a period of 21 days: Jess v Scott (1986) 12 FCR 187. Lockhart, Sheppard and Burchett JJ there observed at 195: It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 5 The explanation for the delay provided by the Applicant is simply that he was unaware of the 21 day period. 6 Had consideration been confined simply to the short extension of time required, the discretion could well have been exercised favourably to the Applicant. The explanation provided is, with respect, not satisfactory. But, as was recognised by the Full Court, a less persuasive explanation may be required when the extension required is for a comparatively short period of time.
Case: Kalanje v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1618
Outcome: followed
Consideration, however, is not confined to such matters. Consideration may also be given to the prospects of success of the Applicant should an extension be granted: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1385 , 79 ALD 154; Kalanje v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1618.
Case: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786
Outcome: followed
Consideration, however, is not confined to such matters. Consideration may also be given to the prospects of success of the Applicant should an extension be granted: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1385 , 79 ALD 154; Kalanje v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1618.
Case: WACF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1385 , 79 ALD 154
Outcome: followed
Consideration, however, is not confined to such matters. Consideration may also be given to the prospects of success of the Applicant should an extension be granted: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1385 , 79 ALD 154; Kalanje v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1618.