mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NABD of 2002 v Minister of Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1
Outcome: cited
The short answer to this is that it attributes to the Tribunal a requirement of the applicant that is not present in its reasons. It did not decide the case on the basis that it was reasonable to expect that the applicant would, or would have to continue to, take reasonable action to avoid harm. Having rejected on credibility grounds that the applicant's group subdivided itself on a number of occasions to make it "less noticeable to the police", there was no claim before the Tribunal that the applicant had modified her behaviour in any way so as to practise her religion without risk of persecution. The applicant's claim was that she was a member of a small group and was persecuted as such. While accepting her small group membership, the Tribunal rejected the claim to persecution, relying both on the unreliability of the applicant's evidence and on the absence of country information relating to the targeting of small Christian groups such as the applicant's. The Tribunal in other words, did not ask itself a wrong question. It addressed the case advanced by the applicant and it considered, in light of what it accepted of that case, whether she had a well-founded fear of persecution if she returned to China. It did not ask whether it was possible for the applicant to live in China in such a way that as to avoid harm. Rather, it concluded that, in the manner in which she actually practised her religion, she would not put herself at risk of persecution from the Chinese authorities: cf NABD of 2002 v Minister of Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [151] and [161] ff. 7 I will order that the application be dismissed and that the applicant pay the costs of the first respondent. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 10 February 2006 Counsel for the Applicant: Mr Keen Solicitor for the Applicant: Refugee Advocacy Service of South Australia Counsel for the Respondent: Mr Roder Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2006 Date of Judgment: 10 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/76.html
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: considered
Like the Federal Magistrate, I can see no error in the Tribunal having reached such a view. Whether or not I would have come to such a view is completely irrelevant. Again, like the Federal Magistrate, I can see no other procedural fairness defect in the course adopted by the Tribunal. Indeed, in so far as one can glean the nature of the hearing from the summary in the reasons, it seems that the Tribunal went beyond the strict requirements of s 424A of the Migration Act as they have been explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , and in that Court's earlier decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009
Outcome: considered
Like the Federal Magistrate, I can see no error in the Tribunal having reached such a view. Whether or not I would have come to such a view is completely irrelevant. Again, like the Federal Magistrate, I can see no other procedural fairness defect in the course adopted by the Tribunal. Indeed, in so far as one can glean the nature of the hearing from the summary in the reasons, it seems that the Tribunal went beyond the strict requirements of s 424A of the Migration Act as they have been explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , and in that Court's earlier decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009.
Case: Li v Minister for Immigration and Citizenship [2007] FMCA 454
Outcome: referred to
Further, I accept that, as the first respondent submitted, the absence of specific reference to persistence in the Tribunal's reasons does not demonstrate a failure to take into account "all the circumstances of the relationship" for the purposes of reg 1.15A(3). The Tribunal was not obliged to mention the fact that the appellant and her sponsor chose to persist with the application even though the Departmental officers indicated that it would be refused. In the circumstances of the case, the relevance and weight of this matter were entirely for the Tribunal. I agree with the learned Federal Magistrate that: "[T]he Tribunal was not obliged to give weight to, or mention specifically in its reasons, the evidence about the applicant persisting with the application in the fact of the indications from the delegate that the application would be refused." See Li v Minister for Immigration and Another [2007] FMCA 454 at [27] . 20 At the hearing of the appeal, the appellant's counsel sought to call into question the conduct of the Departmental officers. This was not raised by the notice of appeal. Nor was it raised in written submissions prior to the hearing. No such argument was advanced or supporting evidence adduced in the Federal Magistrates Court. Nor was the issue raised in the Tribunal. I would not entertain this argument on appeal. 21 Further, I would not infer from the Tribunal's reasons and its failure to mention the matter specifically that the Tribunal failed to have regard to the duration of the appellant's and sponsor's relationship. It set out in detail the evidence before it, referring to dates in the course of the relationship. It specifically mentioned that the appellant and sponsor were married on 1 March 2001. It was, thus, clearly aware of the duration of the relationship between them. The Tribunal noted in its reasons, however, that the evidence raised a number of issues on the subject of commitment. These issues arose from such matters as inconsistencies in the evidence regarding the financial and social aspects of their relationship, the nature of their household and living arrangements, as well as their purported reconciliation, the sponsor's failure to inform the appellant of his previous relationship and children, and the appellant's lack of knowledge of the sponsor's medical conditions. The state of the evidence led the Tribunal to state that it was "not satisfied that the visa applicant and the sponsor have demonstrated a genuine commitment to each other as spouses at the time of decision". The Tribunal's reasons do not show that it acted otherwise than in conformity with reg 1.15A(3).
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: referred to
Both the appellant and the first respondent agree that the Tribunal was not under any general duty to exercise its powers pursuant to ss 359 , 359B and 363 to obtain further information. I reject the appellant's submission that this case raised a circumstance of a kind considered in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (' Prasad ') at 170. It was not obvious that there was any additional material that was readily available and centrally relevant to the Tribunal's decision: compare Prasad at 170 per Wilcox J. This was not a case in which the exercise of power was so unreasonable that no reasonable person would have so exercised it in that way. 29 I repeat my earlier observations on the matter of persistence. It should be borne in mind that, as stated above, the appellant's alleged persistence with her application in the face of a foreshadowed refusal was not of itself a consideration that the Tribunal was, as a matter of law, bound to take into account. I add that the Tribunal did not apparently rely in its reasons on any of the inconsistencies or discrepancies in evidence given by the appellant and her sponsor at the Departmental interview. 30 Accordingly, the appellant's fourth ground of appeal is not made out. For the reasons stated, I would dismiss this appeal with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 3 August 2007 Counsel for the Appellant: Mr A. Krohn Solicitors for the Appellant: Chua Tan &amp; Associates Counsel for the First Respondent: Mr C. Horan Solicitors for the First Respondent: Australian Government Solicitor Date of Hearing: 30 July 2007 Date of Judgment: 3 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1098.html
Case: Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287
Outcome: applied
Once the documents were filed in the FMC, that Court had, at the very least, a limited jurisdiction to consider whether it had jurisdiction to deal with the application for an extension of time and with the substantive issues raised by the application. This proposition was embraced by Katz J in Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287 at 290 where his Honour said: ...every Australian court must have at least a limited jurisdiction in every proceeding in which its jurisdiction is purportedly invoked, namely, a jurisdiction to determine whether it has the jurisdiction which has been purportedly invoked. 14 Federal Magistrate Lloyd-Jones transferred the proceeding to this Court. His Honour did not publish reasons for this decision but presumably, and in my view, rightly, his Honour decided that jurisdiction both in relation to an extension of time and in relation to the substantive issues for review lay not with the FMC, but with the Federal Court of Australia. 15 The respondent accepts that his Honour had jurisdiction to decide the jurisdictional point but submits that, having reached the conclusion that he did not have any jurisdiction to review the Tribunal's decision (or at least having given considerable weight to the submission to that effect) his Honour had no choice but to dismiss the application. In the respondent's submission, the Federal Magistrate had no power to transfer the proceeding under s 39. Therefore the proper course for this Court is to dismiss the present proceedings. 16 Alternatively, the respondent submits, that if the Federal Magistrate had power to transfer the proceeding under s 39 , it could only do so in respect of the question that the FMC had jurisdiction to answer, namely whether the FMC had jurisdiction to review the Tribunal decision. Accordingly, it is submitted, the FMC has only transferred this jurisdictional question to this Court, and therefore this Court may only determine the issue of the Federal Magistrates Court's jurisdiction and may not review the decision of the Tribunal. As the answer to the question whether the FMC had jurisdiction to review the decision of the Tribunal is clearly in the negative, it is submitted that this Court should dismiss the matter. Counsel for the respondent, Mr S Lloyd, elaborated on this point in his written submissions: The Minister contends that there is no proper basis for a court that lacks jurisdiction in respect of a matter to be empowered to transfer the substantive proceeding to a court that has jurisdiction in respect of it. However the matter be analysed, this Court should determine that its jurisdiction is restricted to disposing of the purported transfer or limited transfer of the jurisdictional point that occurred.
Case: O'Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912
Outcome: approved
The construction I have adopted is consistent with the views expressed on a number of occasions when the issue has come before the FMC; Stewart v Pegasus Investments &amp; Holdings Pty Ltd [2004] FMCA 712 at [9] 15], O'Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912 at [11] [16]. Although there is no authority in this Court directly on point I note that in Ogawa v Phipps [2006] FCA 361 ; (2006) 151 FCR 311, which concerned a matter within the exclusive jurisdiction of the Federal Court, Finkelstein J made an order in the nature of mandamus requiring Phipps FM to order that the proceeding be transferred to the Federal Court. The matter was so transferred and addressed by the Federal Court in Ogawa v Registrar of the High Court of Australia [2006] FCA 607 , although ultimately it was dismissed by consent.
Case: Ogawa v Phipps [2006] FCA 361 ; (2006) 151 FCR 311
Outcome: considered
The construction I have adopted is consistent with the views expressed on a number of occasions when the issue has come before the FMC; Stewart v Pegasus Investments &amp; Holdings Pty Ltd [2004] FMCA 712 at [9] 15], O'Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912 at [11] [16]. Although there is no authority in this Court directly on point I note that in Ogawa v Phipps [2006] FCA 361 ; (2006) 151 FCR 311, which concerned a matter within the exclusive jurisdiction of the Federal Court, Finkelstein J made an order in the nature of mandamus requiring Phipps FM to order that the proceeding be transferred to the Federal Court. The matter was so transferred and addressed by the Federal Court in Ogawa v Registrar of the High Court of Australia [2006] FCA 607 , although ultimately it was dismissed by consent.
Case: Ogawa v Registrar of the High Court of Australia [2006] FCA 607
Outcome: considered
The construction I have adopted is consistent with the views expressed on a number of occasions when the issue has come before the FMC; Stewart v Pegasus Investments &amp; Holdings Pty Ltd [2004] FMCA 712 at [9] 15], O'Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912 at [11] [16]. Although there is no authority in this Court directly on point I note that in Ogawa v Phipps [2006] FCA 361 ; (2006) 151 FCR 311, which concerned a matter within the exclusive jurisdiction of the Federal Court, Finkelstein J made an order in the nature of mandamus requiring Phipps FM to order that the proceeding be transferred to the Federal Court. The matter was so transferred and addressed by the Federal Court in Ogawa v Registrar of the High Court of Australia [2006] FCA 607 , although ultimately it was dismissed by consent.
Case: Stewart v Pegasus Investments &amp; Holdings Pty Ltd [2004] FMCA 712
Outcome: approved
The construction I have adopted is consistent with the views expressed on a number of occasions when the issue has come before the FMC; Stewart v Pegasus Investments &amp; Holdings Pty Ltd [2004] FMCA 712 at [9] 15], O'Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912 at [11] [16]. Although there is no authority in this Court directly on point I note that in Ogawa v Phipps [2006] FCA 361 ; (2006) 151 FCR 311, which concerned a matter within the exclusive jurisdiction of the Federal Court, Finkelstein J made an order in the nature of mandamus requiring Phipps FM to order that the proceeding be transferred to the Federal Court. The matter was so transferred and addressed by the Federal Court in Ogawa v Registrar of the High Court of Australia [2006] FCA 607 , although ultimately it was dismissed by consent.
Case: Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386
Outcome: distinguished
Mr Nair placed considerable emphasis on his submission that the letter from the Tribunal misled the applicant by advising him that he could apply to the FMC or the Federal Court, thus creating the impression that he had a free choice between the two courts. It is not clear where this submission was intended to lead. At one stage Mr Nair was suggesting that the letter was so misleading as not to constitute notification and therefore the period within which applications for judicial review must be made had not yet started to run. Even if the letter were misleading in the manner suggested I would reject this submission but, in any event, I do not accept that the letter was misleading. While the opening sentence of the second paragraph (see [3] above) may be capable of creating that impression, read in its entirety, the letter does not do so. It certainly does not purport to give definitive advice about appeal rights; it advises the applicant that legal advice may be desirable and that further information can be obtained from the websites of both courts. As I have concluded that the letter was not misleading, the reasoning in Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, on which the applicant relied, is not relevant to the present proceeding. 12 The respondent submitted that, as the documents were filed outside the 28 day period within which, pursuant to s 477(1), applications to the FMC can be made, at best they could only constitute an application for an extension of time under s 477(2). I accept that submission however I am inclined to the view that the documents were also capable of constituting an inchoate application should an extension of time be granted.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR
Outcome: cited
The Tribunal is not obliged to speculate on claims that did not squarely arise on the material before it and it is not open for the Appellant to now reformulate his claims on an ex post facto basis; NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ; SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265 at [19] ; S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] .
Case: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Outcome: cited
There is nothing before me which demonstrates that the Tribunal failed to comply with the provisions of s 424AA or otherwise failed to accord procedural fairness; NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] . This ground fails. 22 The appellant has not particularised the claim which he alleges was not considered by the Tribunal. The Tribunal made reasoned findings in respect to the Appellant's claims based on his religion and political opinion. The Federal Magistrate found at [43] that the Tribunal did not reach any conclusion as to the one child policy being a law of general application. Rather, the Tribunal found that there was no real chance that the appellant would suffer persecution in consequence of that policy if he returned to China.
Case: NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: cited
The first respondent submits that this finding was based on the Tribunal's earlier finding that the appellant was not a practising Christian and member of an underground church in China and had not suffered persecution for that reason. The first respondent then characterises these findings as considerations of the appellant's motivation and beliefs as evidenced by his conduct in China and not his conduct in Australia. It submits that s 91R(3) does not apply to a person's conscientious beliefs or motivations for conduct; NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [96] and SZJGV at [25] and s 91R(3) should not operate so to oblige the Tribunal to disregard its own ultimate findings as to whether the appellant's conduct in Australia should be disregarded.
Case: Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: cited
The first respondent submits that even if there has been a breach of s 91R(3) , the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82 at [104] , [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] , [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] .
Case: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: cited
The first respondent submits that even if there has been a breach of s 91R(3) , the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82 at [104] , [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] , [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] .
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
The first respondent submits that even if there has been a breach of s 91R(3) , the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82 at [104] , [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] , [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] .
Case: SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265
Outcome: cited
The Tribunal is not obliged to speculate on claims that did not squarely arise on the material before it and it is not open for the Appellant to now reformulate his claims on an ex post facto basis; NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ; SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265 at [19] ; S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] .