mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
Outcome: cited
I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998 , has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE [2007] HCA 35 ; 237 ALR 64 at [53] ; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17] - [18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3] , [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31] - [33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations , this would not lead to a finding of fraud in the relevant sense.
Case: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543
Outcome: cited
There is authority that 'there was no obligation on the part of the Tribunal to ensure that the hearing invitation was provided in a language which the appellant could understand': see SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12] . 58 However, be that as it may, there was nothing to suggest in this case that the Tribunal had any need to consider the possibility that the appellant did not understand or could not be properly informed of the invitation I can find nothing that would put the Tribunal on notice of such a circumstance. The application for review was apparently signed by the appellant, on its face without the aid of an interpreter. Prior to that, the appellant in the application for a visa had employed a migration agent. Admittedly the Tribunal was notified that the appellant needed an Indonesian interpreter. However, there is nothing that puts the Tribunal on notice that in giving an invitation it had to go any further than the method it adopted. The invitation, on the basis of the information provided by the appellant and the legislative scheme, could be sent to the appellant's nominated address and contact made on the nominated mobile number (which was in fact the appellant's number) and, just as the appellant obviously needed to have had assistance in completing the application for review, the Tribunal could assume similar assistance would be made available if any further correspondence took place. 59 The Tribunal was certainly entitled to assume the appellant had received the letter inviting her to attend the fact that the appellant had not corresponded with the Tribunal since the original application for review was lodged does not mean that the Tribunal was aware of any irregularities or had an obligation to further chase up the appellant to attend the hearing. 60 In fact, as we now know, the appellant was aware of the hearing date, and knew it was 'important'. The failure to attend had nothing to do, in fact, with the appellant's lack of familiarity with the English language.
Case: SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310
Outcome: cited
I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998 , has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE [2007] HCA 35 ; 237 ALR 64 at [53] ; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17] - [18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3] , [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31] - [33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations , this would not lead to a finding of fraud in the relevant sense.
Case: SZHVM v Minister for Immigration and Citizenship [2007] FMCA 1200
Outcome: affirmed
This is an appeal from orders made by the Federal Magistrates Court of Australia on 11 July 2007 in SZHVM v Minister for Immigration and Citizenship [2007] FMCA 1200. 2 The appellant is a citizen of Indonesia and arrived in Australia on 23 November 2004. On 22 December 2004, the appellant lodged an application for a protection (class XA) visa. 3 The appellant claimed that she had witnessed electoral fraud during the Indonesian presidential election of 2004. She reported what she saw to the Komiti Pemilihan Umum ('the KPU'), the Indonesian National Elections Commission, in her local area. She claimed that the following day she was threatened with death if she 'did not keep quiet'. Days after that she was assaulted by young men. She suspected that her report to the KPU had leaked. She hid at a friend's place but was then told to leave the house because of the fears her friend held as a result of offering a safe haven to the appellant. The appellant departed from Indonesia. She feared that she would suffer serious harm if she returned to Indonesia and that the authorities would not protect her.
Case: SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661
Outcome: cited
I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998 , has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE [2007] HCA 35 ; 237 ALR 64 at [53] ; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17] - [18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3] , [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31] - [33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations , this would not lead to a finding of fraud in the relevant sense.
Case: SZIVK v Minister for Immigration and Citizenship [2008] FCA 334
Outcome: distinguished
It is also appropriate to mention at this point the recent decision of Finkelstein J in SZIVK v Minister for Immigration and Citizenship [2008] FCA 334. In that case, his Honour was of the view, having considered the decision in SZFDE , that where a migration agent 'falsely indicated in the response to hearing form that the appellant would attend the hearing when the agent knew that could not occur' or where an agent 'signed documents on the appellant's behalf without his knowledge, consent or authority ... and forged [the appellant's] signature', then a court would likely find that there had been a fraud on the Tribunal. For the reasons already set out, SZIVK is distinguishable on the facts from those sought to be put to me on this appeal. 52 In this appeal, even accepting that the evidence suggests that the appellant's negative response to the hearing invitation was procured by her purported agent's coercion, this does and did not amount to dishonest conduct. The appellant's account of her conversation with Mr Marzukie on the morning of the hearing, demonstrating his refusal to take her and his direction that she mind his child in circumstances where she was unable to contact or reach the Tribunal on her own or to otherwise manage independently if she refused his direction, may give rise to an argument that might be characterised as duress. However, duress, while perhaps actionable on other grounds, does not amount to material dishonesty of another which conveys a false impression to the decision-maker such as to make the conduct complained of cognisable as fraud upon the Tribunal under the principles set forth in SZFDE . 54 Whilst the appeal before me is not simply a case of a failure to inform or mere inadvertence, nor is it to be characterised as a case of fraud vis-&agrave;-vis the appellant, nor even then a fraud on the Tribunal. I appreciate, as Finkelstein J in SZIVK [2008] FCA 334 (at [33]) reminds us, that there are many ways in which fraud may be manifested. However, this is not a case where one can infer that the agent, in making the statements to the appellant that resulted in her not attending, acted other than honestly; Mr Marzukie was just concerned about his own interests and put them above those of the appellant. 55 Accordingly, the appellant's first ground of appeal could not succeed even accepting the further evidence of the appellant. 56 The applicant's second ground of appeal--that the Federal Magistrate erred in failing to find that the Tribunal should have considered that the appellant's failure to attend the hearing could have been due to the fact that she could not understand the English language invitation, such that the invitation was not 'real and meaningful'--may be dismissed in much shorter order.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
First, in order to constitute a well founded fear of persecution, any threat or relevant risk must be current or prospective, rather than historical only: VBAO 231 ALR 54, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. However, it is reasonable that a Tribunal should have regard to events that have occurred, to assist in its decision as to whether it is likely that the claimant will in future be subject to persecution. As Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed in Guo 191 CLR at 575: "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: cited
Under the Migration Act it not the role of the Court to engage in a review of the merits of the appellant's claims or findings on the facts by the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . The appellant has claimed before me as a ground of appeal that the learned Federal Magistrate did not consider the issue before his Honour that physical ill-treatment by an officer of the Israeli Special Forces could by itself amount to serious harm. The first respondent submitted that his Honour did deal with this issue at [18] of his Honour's judgment which reads: "It was evident from the Tribunal's decision that it individually assessed each of the Applicant's experiences and considered whether each incident of harm amounted to 'serious harm'. Further it considered the incidents cumulatively and despite that matter was not satisfied that the Applicant's experiences amounted to persecution for a convention reason." 38 On the face of para [18] of his Honour's judgment, contrary to the submission of Ms Wheatley, it is not apparent that his Honour has dealt with the issue whether the physical ill-treatment of the appellant could constitute "serious harm". Indeed a general reference to the individual assessment by the Tribunal of each of the appellant's experiences, and a cumulative consideration by the Tribunal of relevant incidents, does not obviously demonstrate a specific consideration of the issue in question by the Federal Magistrate.
Case: QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281
Outcome: cited
However as I noted recently in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 , although failure by a court to consider a claim clearly raised by a litigant can give rise to a miscarriage of justice ( QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281), it is also clear that the ground before his Honour, and raised on appeal before me, was not plainly arguable because no jurisdictional error is apparent from the decision of the Tribunal in relation to this issue. Even if para [18] of his Honour's judgment does not address the issue of physical ill-treatment of the appellant as claimed by the appellant, this is not a reason to allow the appeal from his Honour's decision or to remit the case to the Federal Magistrate for re-hearing because the ground would have no prospects of success.
Case: SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Outcome: referred to
However as I noted recently in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 , although failure by a court to consider a claim clearly raised by a litigant can give rise to a miscarriage of justice ( QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281), it is also clear that the ground before his Honour, and raised on appeal before me, was not plainly arguable because no jurisdictional error is apparent from the decision of the Tribunal in relation to this issue. Even if para [18] of his Honour's judgment does not address the issue of physical ill-treatment of the appellant as claimed by the appellant, this is not a reason to allow the appeal from his Honour's decision or to remit the case to the Federal Magistrate for re-hearing because the ground would have no prospects of success.
Case: VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212
Outcome: cited
The Federal Magistrate similarly found that no jurisdictional error appeared from the decision of the Tribunal, because the Tribunal had applied the correct test in this case in relation to whether verbal threats could constitute "serious harm" within s 91R. In making this finding, his Honour relied on VBAO 231 ALR 54 and the Federal Court decision in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212. His Honour did not, as claimed by the appellant, decide that threats of disappearance and death could not, by themselves, amount to "serious harm". His Honour's findings were limited to the case before him (in particular at [27]-[30]). I find no error in either his Honour's approach or decision in relation to this issue.
Case: Applicant NADB of 2001 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 326 ; (2002) 126 FCR 453
Outcome: cited
It has been held that Art 1F(b) of the Convention is not to be construed under the influence of the character test in s 501(6) of the Act , and that Art 1F is an independent exclusion of the application of the Convention provisions: see Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 ; (2002) 126 FCR 453 at [42] per Merkel J with whom Madgwick and Conti JJ agreed, and at first instance, NADB v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 293 at [46] and [47] per Hely J.
Case: NADB v Minister for Immigration &amp; Multicultural Affairs (2002) 189 ALR 293
Outcome: cited
It has been held that Art 1F(b) of the Convention is not to be construed under the influence of the character test in s 501(6) of the Act , and that Art 1F is an independent exclusion of the application of the Convention provisions: see Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 ; (2002) 126 FCR 453 at [42] per Merkel J with whom Madgwick and Conti JJ agreed, and at first instance, NADB v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 293 at [46] and [47] per Hely J.
Case: Australian Securities &amp; Investments Commission v Citigroup Global Markets Australia Pty Ltd (No. 3) [2007] FCA 393
Outcome: considered
Australian Securities &amp; Investments Commission v Citigroup Global Markets Australia Pty Ltd (No. 3) [2007] FCA 393 , Jacobson J found that he was not satisfied that the contribution of a group which he described as a ' lobby group ', namely the Australian Financial Markets Association ('AFMA'), would contribute to the proceedings in a way which was ' useful or different from the contributions of the parties ' (see [12]). His Honour observed that the parties were well represented by substantial teams of legal counsel. He also observed at [13] that the applicant in those proceedings, ASIC, would not ' be influenced by tactical or forensic considerations which would be necessary to be off-set by submissions made by AFMA '. The submissions sought to be relied upon by the IIA regurgitate in substance the submissions provided by iiNet which deal, in significant detail, with the subject matters concerning the safe harbour provisions; s 112E of the Copyright Act ; and the concept of copyright authorisation considered in the context of the AFACT notices. The submissions of iiNet have also dealt with the practical and cost consequences of an ISP being required to comply with the demands of the AFACT notices. Further, the provisions of the Telecommunications Act 1997 (Cth) and their interaction with the Copyright Act have also been the subject of extensive submissions from iiNet. Indeed, the industry, detail and comprehensiveness of iiNet's closing submissions, stretching for more than 260 pages, eclipse the brief submissions of the IIA even on the specific matters with which the IIA wishes to address the Court.
Case: Breen v Williams (1994) 35 NSWLR 522
Outcome: considered
IIA has referred the Court to several authorities in support of its submissions. IceTV Pty Limited &amp; Anor v Nine Network Australia Pty Limited [2008] HCATrans 356 was one, wherein the High Court of Australia granted leave to interveners on the ground that the Court ' may be assisted ' by them (per French CJ). Reliance is also placed upon the decision of Kirby P in Breen v Williams (1994) 35 NSWLR 522 at 533 in which the President said: The courts should not turn a blind eye or a deaf ear to the assistance that they might receive from amicus curiae on matters of principle in test cases. Had there been a subject matter contained in the submissions of the IIA which had not been the subject of submissions from iiNet, the Court would have adopted the approach taken by Kirby P in Breen . However, the Court is satisfied that the matters sought to be advanced before this Court by the IIA do not add any material to that which has already been provided to the Court. That is, there is no subject matter of the proposed submissions which has been omitted by iiNet, nor which could be usefully supplemented by the matters contained in those proposed submissions. The Court has been fully assisted by both iiNet and by the applicants in respect of the issues which are the subject of the IIA's proposed submissions. The mere fact that the IIA is not iiNet and thus claims to bring a 'broader perspective' does not render its submissions ' different and useful '. Much of the IIA's submissions in favour of its intervention appear to relate to its involvement in the process of the creation of legislation that is at issue before this Court. However, that involvement is only relevant to the extent that it means that the IIA can provide actual insight as to the interpretation of legislation which iiNet cannot. It does not grant the IIA some kind of preferred status as interpreter of the legislature's will. As the applicants have rightly submitted, it does not matter who says something, it matters what is said and, as has already been stated, the IIA has not proffered anything materially different to iiNet. If the IIA intended by its application for intervention to bring to the Court's attention the importance of its decision in these proceedings, it can take such fact as noted. The Court is, and always has been, well aware of the ramifications of the outcome of its decision for ISPs, rights holders, and the development of the internet more broadly.
Case: IceTV Pty Limited &amp; Anor v Nine Network Australia Pty Limited [2008] HCA Trans 356
Outcome: considered
IIA has referred the Court to several authorities in support of its submissions. IceTV Pty Limited &amp; Anor v Nine Network Australia Pty Limited [2008] HCATrans 356 was one, wherein the High Court of Australia granted leave to interveners on the ground that the Court ' may be assisted ' by them (per French CJ). Reliance is also placed upon the decision of Kirby P in Breen v Williams (1994) 35 NSWLR 522 at 533 in which the President said: The courts should not turn a blind eye or a deaf ear to the assistance that they might receive from amicus curiae on matters of principle in test cases. The Court acknowledges that the fact that the IIA could not be considered impartial is irrelevant. Equally, it is irrelevant that the IIA happens to have a perspective which is aligned with one of the parties and not the other. As much is clear from the High Court allowing Telstra and the Australian Digital Alliance to act as amicus in IceTV . Therefore, the only relevant consideration is whether the IIA's submissions are ' useful and different ' from that which the Court already has before it.