mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: considered
The Tribunal found that the restraint on proselytization was not persecutory conduct "... on the basis that the laws restricting proselytizing are laws applied across the board to all religious denominations and that the object of these laws is not the suppression of a particular religion but rather the maintaining of social order. That is the Tribunal finds on the basis of the country information set out above that the law and its enforcement is appropriate and adapted to achieving a legitimate object ...". In so holding, the Tribunal relied upon passages in the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 258 and in the joint reasons of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [45] .
Case: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2001) 201 CLR 293
Outcome: considered
In Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 , the majority of the High Court said at [19]-[21]: 19 Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group for example, "black children", as distinct from children generally cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A , the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group. 20 In Applicant A , McHugh J pointed out that "[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but] ... on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group" ... . In that context, his Honour also pointed out that "enforcement of a generally applicable criminal law does not ordinarily constitute persecution" ... . That is because enforcement of a law of that kind does not ordinarily constitute discrimination. 21. To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory ... . And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention.
Case: M52 and M53 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1495
Outcome: cited
On 2 May 2002, the appellant applied to the High Court of Australia, seeking relief under s 75(v) of the Constitution in relation to the Tribunal's decision. The High Court remitted that proceeding to this Court. On 5 December 2003, Heerey J dismissed that application. His Honour's reasons are published as M52 and M53 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1495. Those reasons make it clear that his Honour did not give judgment on the merits, but rather dismissed the application on an interlocutory basis, because the appellant had failed to lodge it within the time limits fixed by the High Court Rules, and his Honour refused to extend the times so fixed. 5 The appellant appealed from the judgment of Heerey J. On 6 May 2004, a Full Court of this Court refused to extend the time for filing an application for leave to appeal, refused leave to appeal, and dismissed the appellant's purported appeal as incompetent. Although there appear to be no published reasons of the Full Court, it is plain that the Full Court regarded the judgment of Heerey J as an interlocutory judgment, from which leave to appeal was necessary.
Case: MZWGV v Minister for Immigration [2005] FMCA 980
Outcome: referred to
On 13 May 2004, the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. On 6 April 2005 the Federal Magistrates Court dismissed that proceeding. The reasons for judgment of the Federal Magistrates Court on that occasion have been published as MZWGV v Minister for Immigration [2005] FMCA 980. They indicate that the learned federal magistrate dismissed the application on the basis that his Honour considered that the appellant was estopped by the previous judgments of North J and Heerey J, and the judgment of the Full Court of this Court, from applying again at all to have the Tribunal decision set aside. His Honour also took the view that the Federal Magistrates Court should not be seen to be reviewing decisions made by Federal Court judges. On 6 April 2005, as well as dismissing the appellant's application with costs, the federal magistrate also ordered that there be no further applications brought by the appellant with respect to the Tribunal's decision except by leave of the Federal Magistrates Court. 21 It does seem to me that, if the appellant could have made a case that he had a ground on which he could have sought to set aside the Tribunal's decision, which was a ground not available to him under the provisions of Pt 8 of the Migration Act , as they stood at the time of his application to this Court that was dealt with by North J, then he might still have been able to make an application to set aside the decision of the Tribunal at the time when he made his first application to the Federal Magistrates Court, and even at the time when he made his second. In my view, in the first of the federal magistrate's judgments, his Honour was wrong to regard the entire matter as being one of estoppel against the appellant from bringing any application on any ground in respect of the Tribunal's decision. For the reasons I have set out in Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641 at [54] [71], it seems to me that it would have been open to the appellant to raise a ground that he could not have raised under the provisions of Pt 8 of the Migration Act as they stood at the time of his first application to the Court, because whatever grounds he raised before the High Court had not been the subject of judgment on the merits, and no estoppel was therefore raised in respect of them. It is true that there might be issues of Anshun estoppel, but these would have to be matters of argument.
Case: MZXAF v Minister for Immigration [2005] FMCA 979
Outcome: referred to
Notwithstanding that order, on 23 May 2005 the appellant applied again to the Federal Magistrates Court for review of the Tribunal decision. On 2 June 2005, the same federal magistrate again dismissed that application with costs. The federal magistrate's reasons for judgment are published as MZXAF v Minister for Immigration [2005] FMCA 979. After referring to the order made on 6 April 2005, his Honour said at [5] [6]: 'The applicant's only basis for bringing the further application is that he says he now has some witnesses. This would not have been an arguable ground for review, even on his first application. Where an applicant is the subject of an order not to bring further applications without the leave of the court the appropriate step to take before bringing a further application for review is to apply for leave. A leave application should be supported by an affidavit setting out the facts and circumstances relied upon to show that leave should be granted. A copy of the proposed application should be annexed to the affidavit.' The reasons make clear that, because of the fact that the appellant had not sought the leave of the Court before bringing his application, his Honour saw fit to dismiss the application. 8 On 6 June 2005, the appellant filed in this Court what is, in form, a notice of appeal from the judgment of the federal magistrate given on 2 June 2005. The grounds of appeal specified in the notice of appeal read as follows: '1. I disagree with the decision of the Federal Magistrates [ sic ] because there was an error in this decision. Details I will provide as soon as I received [ sic ] the judgement [ sic ]. 2. There was procedural error in the court's decision. The original date of this hearing is on 22nd of June 2005. But it was advanced to 2nd of June 2005. This hearing was heard by telephone. The Judge failed to consider my case inaccordance [ sic ] with the law of the country. I believe that this was abreach [ sic ] of natural Justice. Further, I believe this was the abreach [ sic ] of the human rights &amp; also the procedure of the court. 3. I believe that the court only listening the [ sic ] Minister of Immigration &amp; their Lawyers but not the applicant. This I believe an error of the court procedure &amp; also Bias and unfair.' 9 I dealt with the matter by way of directions hearing on 8 August 2005. Among the directions that I gave was a direction that, on or before 22 August 2005, the appellant file and serve any application for leave to appeal, any application to enlarge the time for applying for leave to appeal, and any affidavit or other document on which the appellant seeks to rely on the hearing of the appeal or any application for leave to appeal or for enlargement of time.
Case: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: followed
The Court also notes that it cannot review the merits of a Tribunal decision: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] ; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42.
Case: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
The Court also notes that it cannot review the merits of a Tribunal decision: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] ; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: followed
The Court also notes that it cannot review the merits of a Tribunal decision: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] ; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42.
Case: Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407
Outcome: followed
Scarlett FM found that the Tribunal's assessment of the appellant's credibility was based upon his evidence to the Tribunal, independent country information, inconsistencies within the appellant's own evidence and inconsistencies between his evidence and the independent country information. His Honour relied upon the decision in Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 , which held that the assessment of the credibility of an applicant is a matter of fact and is a matter solely for the administrative decision maker. Scarlett FM observed that there is no basis for conducting a judicial review and interfering with the Tribunal's findings provided there is evidence upon which a credibility finding may be made. 20 Scarlett FM satisfied himself that the appellant's own evidence and the independent country information were sufficient to allow the Tribunal to make its findings concerning the appellant's credibility. The Court finds that his Honour did not err in making such finding.
Case: SZBYR and Another v Minister for Immigration and Citizenship and Another [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: followed
The Tribunal found that there were inconsistencies in the appellant's evidence. Scarlett FM noted that it was well established that inconsistencies in evidence do not constitute 'information' for the purposes of s 424A of the [2007] FCA 26 ; Act (see SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18] ) and accordingly do not constitute 'information' for the purposes of s 424AA. His Honour also observed that the Tribunal offered the appellant an opportunity to comment on certain aspects of the evidence, although before his Honour the appellant denied that he was given such opportunity. 27 The Court observes that s 424AA of the Act does not contain an equivalent provision to s 424A(3). Section 424A(3) identifies material which is not 'information' for the purposes of the application of that section. However, as s 424AA is merely an alternative form of notification available to the Tribunal (see s 424A(2A)) , the Court considers that the exclusions contained in s 424A(3) apply with equal force to s 424AA. Such inference is supported by the collective use of the term 'information' in s 424A(2A) of the Act (a subsection which applies to both ss 424A and 424AA ), as such use implies uniformity of meaning. Section 424A(2A) provides: (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. Accordingly, the Court considers that what is not 'information' for the purposes of s 424A(1) of the Act is also not 'information' for the purposes of s 424AA. 28 It follows from the above that no error is apparent in the Federal Magistrate's finding in relation to the Tribunal's compliance with s 424AA of the Act. The appellant's second ground of appeal is accordingly rejected.
Case: SZLXI v Minister for Immigration and Citizenship and Anor [2008] FMCA 759
Outcome: affirmed
The appellant appeals from the decision of Federal Magistrate Scarlett delivered on 26 May 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 20 December 2007 (see SZLXI v Minister for Immigration and Citizenship and Anor [2008] FMCA 759). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa ('the protection visa') to the appellant. 2 The appellant is a citizen of the People's Republic of China ('the PRC'). The appellant arrived in Australia on 7 July 2007 and lodged an application for the protection visa with the Department of Immigration and Citizenship on 20 August 2007. A delegate of the Minister refused the application for the protection visa on 31 August 2007. On 28 September 2007 the appellant made an application to the Tribunal for a review of the delegate's decision. 3 Before the Tribunal the appellant claimed to have been recruited by the People's Liberation Army ('the army') in October 1982 as an engineer. The appellant claimed that after being demobilised he became a goldsmith and in 1999 established his own business in Wuxi City. The appellant claimed that as he was not a local in Wuxi City he became a victim of corruption at the hands of the local officials.
Case: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 ; (2008) 169 FCR 227
Outcome: followed
must take into account, follow and apply the relevant and binding reasoning and ratio of the Full Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 ; (2008) 169 FCR 227. I consider that I should apply the following principles and propositions contained in the reasoning of the Full Court whether they be the ratio, or one of the rationes, of the decision or persuasive and considered obiter dicta: (a) In determining a claim for protection of documents from disclosure and inspection on the ground of public interest immunity a Court must undertake a balancing exercise and determine whether the public interest in protecting from disclosure the identity of an informer outweighs the public interest that in a civil proceeding a party should not be denied access to relevant evidence; (b) The partial or limited disclosure of the identity of an informer is not conclusive in determining whether the identity of the informer should be protected from being disclosed in documents sought to be the subject of inspection on the ground of public interest immunity. Immunity from further disclosure is not necessarily lost where there has been a partial limited disclosure of the identity of an informer; (c) The transcripts of the examination of the informer or informers would, both directly and circumstantially, identify the informer or the informers; (d) The appropriate test to apply in determining whether inspection of the relevant documents and transcripts might disclose the identity of an informer or informers is to ask whether there is in the documents any material by which "a shrewd idea" might be conveyed as to the identity of the informer or informers, noting that documents taken together may convey information which each, by itself, could not convey. Further, the benefit of the doubt should be in favour of non-disclosure. The observations I made in pars [13]-[20] in my reasons for judgment published on 23 July 2009 apply in relation to ASIC's claim for public interest immunity in respect of the documents produced by KPMG. I have considered the submissions made by ASIC in relation to the KPMG documents and audio tapes and the redaction or masking proposed by ASIC in relation to a number of those documents. I have reached the conclusion that the redaction and masking undertaken by ASIC in relation to the KPMG documents goes beyond the redaction and masking which is necessary in order to ensure that the documents do not have a tendency to disclose the identity of an informer or informers to ASIC. I set out in Confidential Appendix A to these reasons my conclusion whether ASIC's claims for public interest immunity in respect of the documents should be upheld or rejected and my conclusion as to the redaction and masking of the documents which I consider should be undertaken. This Appendix will only be made available to ASIC's legal advisors and the deponents of its affidavits for the purpose of determining the form of any public non-confidential order which I should make.
Case: Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 ; (1995) ATPR 41-434
Outcome: cited
Embarrassment in the context of O 11 r16 'carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. The list is not intended to be exhaustive': Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 ; (1995) ATPR 41-434.
Case: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq.) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416
Outcome: considered
The approach of Rares J in Boston Commercial was adopted by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq.) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 where his Honour said at [30] [33]: '[30] ... The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: &#8226; In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. &#8226; There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. &#8226; Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. &#8226; Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. [31] I do not think that this approach conflicts with the provisions of s 31A(3). [32] It is true that summary dismissal applications are to be determined on the pleadings and any evidence before the Court; but at the heart of the exercise is the assessment on incomplete materials, of the prospects of success if the matter proceeds to a final hearing: Boston Commercial at [38], [48]. [33] It would be wrong to determine the application on a narrow approach to the pleadings where, as here, there is evidence, albeit incomplete, and perhaps at this early stage, ambivalent, which may at a final hearing, and with amended pleadings, produce a verdict for the applicant.'
Case: Davids Holdings Pty Ltd v Coles Myer Ltd [1993] FCA 204 ; (1993) ATPR 41-227 
Outcome: cited
A pleading which is internally inconsistent is embarrassing: Vasyli v AOL International Pty Ltd (NG 219/96) Lehane J, 19 August 1996, unreported. A pleading should assert the basic and constituent facts, not the evidence upon which those facts will or may be proved at trial. A pleading is defective if it simply asserts a conclusion to be drawn from the facts not stated: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114 115; and is not saved by using the words '[i]n the premises' to introduce the conclusion: Davids Holdings Pty Ltd v Coles Myer Ltd [1993] FCA 204 ; (1993) ATPR 41-227.
Case: Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574
Outcome: considered
In Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 , Tamberlin J also gave clear approval to the approach taken by Rares J in Boston Commercial . His Honour said at [12] [13]: '[12] Section 31A of the Federal Court Act 1976 (Cth) was introduced to impose a lower requirement to dismiss an action by way of summary judgment than that which was imposed in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In that case, the requirement was expressed in terms of "manifestly groundless" or "obviously untenable". [13] In a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading: see Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352 at [45] . The underlying principle is that the need for a summary judgment must be clear before the court will intervene to prevent a plaintiff submitting a case for determination in the usual way. Once it appears that there is a real issue to be determined, whether it be of fact or law, and that the rights of the parties depend on it, the court should not terminate the action by way of summary judgment. As Barwick CJ said in General Steel at 129-130, great care must be exercised to be sure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity to have his or her case tried by the appointed tribunal. The general principle that a person should not lightly be shut out from a hearing is cogent the onus on the party applying for summary judgment is heavy.'