mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Outcome: discussed
Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Gleeson CJ and McHugh J said (544-545 [83]-[85]): "As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution" . However, given the nature of the prosecutor's claim, the Tribunal was entitled &#8212; indeed bound &#8212; to start its inquiry by considering her claim that she had been arrested by government officials for political reasons. ... Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed." (Citations omitted.)
Case: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: referred to
the appellant submitted that the Tribunal's result was so unreasonable that the Tribunal must have proceeded under a misconception which amounted to jurisdictional error. The appellant referred to Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J and The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ.
Case: AZAAF v Minister for Immigration &amp; Citizenship &amp; Another [2008] FMCA 1533
Outcome: cited
is an appeal from a decision of the Federal Magistrates Court: AZAAF v Minister for Immigration &amp; Citizenship &amp; Another [2008] FMCA 1533. On 14 November 2008, that Court made an order that the appellant's application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal") be dismissed. The appellant is a national of Egypt. He arrived in Australia on a student visa on 10 May 2005, having left Cairo on 9 May 2005. On 23 June 2005, the appellant made an application for a Protection (Class XA) visa ("protection visa"). On 30 September 2005, a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant's application for a protection visa. On 2 November 2005, the appellant applied to the Tribunal for a review of the delegate's decision. On 28 January 2006, the Tribunal decided to affirm the delegate's decision not to grant a protection visa to the appellant. The appellant made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. By consent, the Federal Magistrates Court issued constitutional writs setting aside the Tribunal's decision and it remitted the matter to the Tribunal to be determined according to law. On 5 February 2008, the Tribunal (differently constituted) once again decided to affirm the decision of the delegate not to grant a protection visa to the appellant. The appellant again made an application to the Federal Magistrates Court seeking constitutional writs directed to the Tribunal and it is the decision of the Federal Magistrates Court on that application which is the subject of the appeal to this Court.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: discussed
"what if I am wrong test" was discussed by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 576. "It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong." In Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Gleeson CJ and McHugh J said (544-545 [83]-[85]): "As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution" . However, given the nature of the prosecutor's claim, the Tribunal was entitled &#8212; indeed bound &#8212; to start its inquiry by considering her claim that she had been arrested by government officials for political reasons. ... Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed." (Citations omitted.)
Case: N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21
Outcome: referred to
refer also to N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at 34-35 [43]-[49]. In my opinion, there are two answers to the appellant's submission. The first is that the Tribunal member did not, it seems to me, have any real doubt about his conclusions. He found that, even making allowance for the appellant's medical condition, he was not a witness of truth. He made the point on a number of occasions in the course of his reasons that he did not believe the appellant's account of events and that he found particular claims made by the appellant to be inconsistent and implausible. The second answer to the appellant's submission is that the Tribunal member did address the ultimate questions of whether the appellant faced or faces significant relevant harm from Muslim fundamentalists in his community and whether he faced a real chance of persecution in Egypt (see [19] and [22]). The second submission in relation to grounds three and four is that it is said that the Tribunal member's reasoning in the following passage is illogical: "The Tribunal accepts as genuine the death certificate pertaining to the Applicant's father. The Tribunal accepts that the Applicant's father died at home at 49 years from a 'brain haemorrhage' or stroke. The Tribunal is prepared to accept in principle that a person could die hours after a serious beating from internal bleeding, for example, in the head or in the torso. On the evidence before it, the Tribunal does not accept the claim that the Applicant's father died as a result of police brutality or that he was detained and mistreated by the police shortly before dying. On the evidence before the Tribunal, the claimed circumstances of the Applicant's father's death are concocted. This is to a significant extent because the Tribunal does not accept as factual the key events that led to the Applicant going into internal exile, or the circumstances in which he returned to the farm, or the facts about how he obtained his passport. The Tribunal does not accept the Applicant's claim that the authorities adopted a stance or pattern of detaining and beating his father to get to or at him, the Applicant, or to extract information about him. The Tribunal also finds that in view of the Applicant's overall credibility problems up to this point, it does not accept that the authorities, supposedly acting in the interests of violently angered fundamentalists, adopted a stance or pattern of detaining and beating the Applicant's father to punish him for his own actions or to deter him from similar actions in the future."
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264
Outcome: discussed
connection with this submission, reference was made to NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 (" NADH ") and, in particular, to Allsop J (with whom Moore and Tamberlin JJ agreed) at 286-287 [129]-[136]. I do not think that there is anything illogical in the Tribunal member's reasoning. In essence, the conclusion is reached that the story is concocted by the appellant because key elements of his account cannot be accepted. The fifth ground of appeal is not pressed by the appellant. Secondly, the appellant submitted that the conduct of the review and the findings made by the Tribunal member should lead to the conclusion that the Tribunal was guilty of apprehended bias. The appellant referred to NADH at 266-285 [10]-[125], a case in which the Full Court of this Court held that the Tribunal was guilty of apprehended bias. A singular feature of that case was that a number of letters and documents were in effect put to one side by the Tribunal member as not establishing any fact without any real reasons being given for adopting that course. For example, a number of letters were dismissed by the Tribunal member as being of no weight on the grounds that they were vague or did not establish certain matters without any real reasons being given for those conclusions.
Case: NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137 ; (2003) 77 ALD 424
Outcome: discussed
the appellant submitted that the conduct of the review and the findings made by the Tribunal member should lead to the conclusion that the Tribunal did not conduct the review required by the Act. The appellant referred to NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137 ; (2003) 77 ALD 424 , a case in which Hill J reached the conclusion that the Tribunal had not conducted the review required by the Act. Without being exhaustive, features of that case which led to that conclusion were a refusal by the Tribunal member to allow the applicant to call a witness, the Tribunal member acting in a rude manner and the Tribunal member cutting the applicant off in the course of his answers and refusing to hear explanations from the applicant.
Case: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: referred to
the appellant submitted that the Tribunal's result was so unreasonable that the Tribunal must have proceeded under a misconception which amounted to jurisdictional error. The appellant referred to Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J and The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ.
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: cited
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ( Teoh ), the High Court held (McHugh J dissenting) that procedural fairness required that if a relevant decision maker proposed to make a decision inconsistent with Article 3 of the Convention, procedural fairness required the decision maker to inform the person affected and provide to that person the opportunity of presenting a case against the taking of such a course. The reason was that ratification by Australia of an international convention engendered a "legitimate expectation" that administrative decision makers would act in conformity with that convention. Mr Karp has drawn attention to the fact that the expression has perhaps fallen into disuse since Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 , see especially at [61]-[64] and [81]-[83] per McHugh and Gummow JJ, [121] per Hayne J, [148] per Callinan J. In view of the way in which the present case was argued, I need say no more of this. Quite apart from Teoh , the Direction provided a basis for a legitimate expectation that the Minister would treat the best interests of the child as a primary consideration when deciding whether to cancel Mr Rinka's visa. This expectation was created by the fact that the letter of 20 February 2006 notifying Mr Rinka of the Minister's intention to consider cancelling his visa stated that the decision-maker would have regard to the Direction in coming to a decision. I will first address the question whether the best interests of Mr Rinka's children were in fact treated as a primary consideration by the Minister. Briefing Paper The briefing paper to the Minister, headed "Issues for Consideration of Possible Cancellation of a Visa under s 501(2) of the Migration Act 1958 ", was structured by reference to the Direction. Since it was plain that Mr Rinka failed to pass the character test, there was little discussion of that matter. The Minister's "Discretion" was considered under the headings "Primary Considerations", "Other Considerations" and "Other International Obligations". Three Primary Considerations were discussed: "Protection of the Australian Community", "The Expectations of the Australian Community" and "The Best Interests of the Child".
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ( Teoh ), the High Court held (McHugh J dissenting) that procedural fairness required that if a relevant decision maker proposed to make a decision inconsistent with Article 3 of the Convention, procedural fairness required the decision maker to inform the person affected and provide to that person the opportunity of presenting a case against the taking of such a course. The reason was that ratification by Australia of an international convention engendered a "legitimate expectation" that administrative decision makers would act in conformity with that convention. Mr Karp has drawn attention to the fact that the expression has perhaps fallen into disuse since Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 , see especially at [61]-[64] and [81]-[83] per McHugh and Gummow JJ, [121] per Hayne J, [148] per Callinan J. In view of the way in which the present case was argued, I need say no more of this.
Case: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133
Outcome: distinguished
Rinka submits that the Minister failed to identify what the best interests of the children indicated she should decide with respect to the cancellation of Mr Rinka's visa, and that the Minister therefore did not treat the best interests of the children as a primary consideration in reaching her decision. In making these submission, Mr Rinka relies on Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133 ( Wan ) (see, particularly, [26]-[27], [31]). Mr Rinka submits that the concept of the best interests of the children involved consideration of their relationship with Mr Rinka. He submits that the Minister had before her the older son's letter saying that he misses his father and speaking of his exploits at soccer, yet she did not refer to this material in her statement of reasons. Counsel for Mr Rinka accepts that this alone does not show jurisdictional error, but submits that, in combination with the "speculative" comments made by the Minister in para 81 of her statement of reasons, it does suggest that she did not give proper, genuine and realistic consideration to the material that was before her. If she did not, it would follow that the best interests of the children also could not have been given proper, genuine and realistic consideration. Consideration Wan , on which Mr Rinka relied, concerned an appeal to the Court from a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the Minister to refuse to grant a permanent residence (general-spouse) visa on character grounds. It was also a "best interests of the child" case. There were provisions of the Administrative Appeals Tribunal Act 1975 (Cth) governing the procedure of the AAT that have no relevance in the circumstances of the present case. Nonetheless, the Full Court's holding in Wan that in order to treat the best interests of the child as a primary consideration, a decision maker must identify what those interests indicate the decision should be, is applicable. The Full Court held that the AAT did not do so. An alternative ground for the Full Court's decision was that the conclusion was inescapable that the AAT had not treated the best interests of the child as "a primary consideration". As indicated earlier, although the Minister's statement of reasons does not say in terms that "the best interests" of Mr Rinka's children dictated that his visa not be cancelled, that is the effect of para 83. Moreover, the Minister did say that she was treating the best interests of Mr Rinka's children as a primary consideration, and it is not shown that her statement to that effect should not be accepted. In the result, in my opinion the Minister's statement of reasons shows that the Minister treated the best interests of Mr Rinka's two children as a primary consideration, as she said she did in the first sentence of para 80.
Case: Kelly v Fitzpatrick [2007] FCA 1080
Outcome: referred to
I have concluded that it is appropriate to impose the proposed penalties. In doing so I have had regard to the following matters: &#8226; Although there were multiple contraventions by the respondents of the relevant sections of the Act , those contraventions formed part of a single course of conduct which was intended to persuade each of the nine employees to become a party to an AWA. &#8226; The monetary penalties imposed distinguish between the contraventions of s 401(1) of the Act on the one hand and the contraventions of ss 337(8) and 337 (9) on the other having regard to the higher maximum penalty applicable for contraventions of s 401(1) and the fact that the contravention of s 401(1) of the Act , was, in each case, the major contributing factor to the employees becoming parties to AWAs. &#8226; The consequences for each of the employees were serious. The longer serving members of the group suffered the most. As a group they were deprived of an amount in the order of $149,000 which represented the difference between what would have been payable had their redundancy entitlements been calculated under the certified agreement and the amount to which they were collectively entitled under the AWAs. &#8226; There is a strong need for general deterrence of the type of conduct engaged in by the respondents in the present case. &#8226; The conduct complained of undermines the legislative objective that AWAs should be the product of free bargaining between the parties. &#8226; The totality principle which I explained in greater detail in Kelly v Fitzpatrick [2007] FCA 1080 at [30] and the appropriateness of fixing a total penalty for a course of conduct: as to which see McIlwain v Lamsay Food Packaging Pty Ltd (No 4) (2006) 158 IR 181 at 216-7.
Case: McIlwain v Lamsay Food Packaging Pty Ltd (2006) 158 IR 181
Outcome: referred to
I have concluded that it is appropriate to impose the proposed penalties. In doing so I have had regard to the following matters: &#8226; Although there were multiple contraventions by the respondents of the relevant sections of the Act , those contraventions formed part of a single course of conduct which was intended to persuade each of the nine employees to become a party to an AWA. &#8226; The monetary penalties imposed distinguish between the contraventions of s 401(1) of the Act on the one hand and the contraventions of ss 337(8) and 337 (9) on the other having regard to the higher maximum penalty applicable for contraventions of s 401(1) and the fact that the contravention of s 401(1) of the Act , was, in each case, the major contributing factor to the employees becoming parties to AWAs. &#8226; The consequences for each of the employees were serious. The longer serving members of the group suffered the most. As a group they were deprived of an amount in the order of $149,000 which represented the difference between what would have been payable had their redundancy entitlements been calculated under the certified agreement and the amount to which they were collectively entitled under the AWAs. &#8226; There is a strong need for general deterrence of the type of conduct engaged in by the respondents in the present case. &#8226; The conduct complained of undermines the legislative objective that AWAs should be the product of free bargaining between the parties. &#8226; The totality principle which I explained in greater detail in Kelly v Fitzpatrick [2007] FCA 1080 at [30] and the appropriateness of fixing a total penalty for a course of conduct: as to which see McIlwain v Lamsay Food Packaging Pty Ltd (No 4) (2006) 158 IR 181 at 216-7.
Case: Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Outcome: followed
The Court is not bound to accept and impose these proposed penalties but will do so if persuaded that, in all the circumstances, they fall within the permissible range: cf NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1996) 71 FCR 285 at 290-1. In Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at 565 Jessup J expressed the view, with which I respectfully agree, that the phrase "permissible range" in this context "refers to a range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive."