mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: O'Neill v Mann [2000] FCA 1680
Outcome: cited
Mr Preston for the Kabi Kabi #2 Applicant submitted in summary: &#8226; any consideration of an award of costs on the discontinuance of the 29 June 2006 notice of motion must occur in light of s 85A of the Act &#8226; as made clear in Ward [1999] FCA 580 ; 93 FCR 305 and De Rose [2005] FCAFC 137 o the starting point is that each party will bear their own costs unless the Court determines that it is appropriate in the circumstances to make an order for costs o there is no requirement that a threshold condition be met before the Court is empowered to make a costs order under s 85A(2) o section 85A(2) does not control or limit the discretion available to the Court under s 85A(1). &#8226; the conduct of the parties in the matter and the reasons for the discontinuance of a matter can bear heavily on the exercise of the discretion as to costs, so that if the discontinuance can be said to be an acknowledgement of likely defeat or no objective circumstance provides reasons for the discontinuance, a costs order in favour of the other party will ordinarily be made (Finn J in O'Neill v Mann [2000] FCA 1680 at [13] ) &#8226; a significant number of circumstances exist which would justify an award of costs against the Kabi Kabi #3 Applicant in this case &#8226; it is an underlying policy in the Federal Court Rules that the discontinuing party should be liable for the other party's costs unless the Court orders otherwise &#8226; the Kabi Kabi #3 Applicant did not comply with the directions of 9 March 2007 and file material, and did not inform the Kabi Kabi #2 Applicant of the decision to discontinue the application to amend until after the due date had passed to file material &#8226; the Kabi Kabi #2 Applicant filed material by the due date and has thrown away costs as a result &#8226; the Kabi Kabi #3 Applicant should be ordered to pay those costs of the Kabi Kabi #2 Applicant.
Case: Williams v Grant [2004] FCAFC 178
Outcome: cited
To the extent that there is overlap with respect to the operation of s 84C and O 20 r 2 in the context of native title cases, I note that: &#8226; unlike O 20 r 2 which applies generally, s 84C is clearly limited to native title determination applications under the Act &#8226; section 84C applies where an application does not comply with ss 61 , 61A or 62 , whereas O 20 r 2 is only enlivened if no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious, or the proceeding is an abuse of process &#8226; the Courts have tended to equate the consequences of strike-out under s 84C with those of summary dismissal under O 20 r 2: Williams v Grant [2004] FCAFC 178 at [48] - [49] . Accordingly the Courts approach such matters with caution, and on the basis that no court proceeding should be summarily dismissed except in a very clear case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 89.
Case: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480
Outcome: cited
leave of this Court is therefore required before reliance can be placed upon an argument on appeal that has not previously been raised for resolution. In considering whether or not to grant leave, it is necessary to give some consideration to the merits of the issues sought to be raised &#8212; but it is not necessary to " enter upon a full consideration of the grounds ". To do otherwise would " make the requirement for leave meaningless ": Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ. See also: MZXEN v Minister for Immigration and Citizenship [2007] FCA 829 at [10] , [2007] FCA 829 ; 240 ALR 582 at 584 to 585 per Jessup J. In Iyer their Honours also cited with approval the following observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348: [8] In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration. These comments were obviously made prior to the 2005 amendments to the Federal Court of Australia Act 1976 (Cth) to permit appeals from migration decisions of the Federal Magistrates Court to be entertained by a single Judge or a Full Court: s 25(1AA). Many migration appeals to this Court from the Federal Magistrates Court are now resolved by a single Judge. But there remains the relevance of their Honours' observations as to the interests of other appellants. See also: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [3] to [5], 174 FCR 14 at 18 to 19 per Moore and Lander JJ. It matters not, in the present context, that the appeal is an appeal from a decision of the Federal Magistrate rather than a single Judge of this Court &#8212; which would, of course, require a Full Court.
Case: Lansen v Minister for Environment and Heritage [2008] FCAFC 189 , 174 FCR 14
Outcome: cited
leave of this Court is therefore required before reliance can be placed upon an argument on appeal that has not previously been raised for resolution. In considering whether or not to grant leave, it is necessary to give some consideration to the merits of the issues sought to be raised &#8212; but it is not necessary to " enter upon a full consideration of the grounds ". To do otherwise would " make the requirement for leave meaningless ": Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ. See also: MZXEN v Minister for Immigration and Citizenship [2007] FCA 829 at [10] , [2007] FCA 829 ; 240 ALR 582 at 584 to 585 per Jessup J. In Iyer their Honours also cited with approval the following observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348: [8] In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration. These comments were obviously made prior to the 2005 amendments to the Federal Court of Australia Act 1976 (Cth) to permit appeals from migration decisions of the Federal Magistrates Court to be entertained by a single Judge or a Full Court: s 25(1AA). Many migration appeals to this Court from the Federal Magistrates Court are now resolved by a single Judge. But there remains the relevance of their Honours' observations as to the interests of other appellants. See also: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [3] to [5], 174 FCR 14 at 18 to 19 per Moore and Lander JJ. It matters not, in the present context, that the appeal is an appeal from a decision of the Federal Magistrate rather than a single Judge of this Court &#8212; which would, of course, require a Full Court.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 , 75 ALD 1
Outcome: cited
some degree of latitude is appropriate when determining what is sufficient to bring to the attention of the Tribunal that an applicant wishes to have further time in which to respond to " information ". There is certainly no requirement that a request need be in writing. Even a formal and express oral request for additional time may not be appropriate or necessary. The Tribunal, it is to be recalled, is given the mandate to conduct its review functions in a manner that is " fair, just, economical, informal and quick " ( Migration Act 1958 (Cth) s 420(1)) and in an " inquisitorial manner ": Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 , 75 ALD 1 at [57] per Gummow and Heydon JJ and at [60] per Kirby J. In an appropriate case it may thus be manifestly apparent to the Tribunal that an applicant is in fact seeking additional time &#8212; even though he has not said so. But there is nothing now before this Court to indicate that the Appellant was not willing to respond to all of the " information " then before the Tribunal. There was, for instance, no transcript of the hearing before the Tribunal from which any inference favourable to the Appellant may have been drawn.
Case: MZXEN v Minister for Immigration and Citizenship [2007] FCA 829 , 240 ALR 582
Outcome: cited
leave of this Court is therefore required before reliance can be placed upon an argument on appeal that has not previously been raised for resolution. In considering whether or not to grant leave, it is necessary to give some consideration to the merits of the issues sought to be raised &#8212; but it is not necessary to " enter upon a full consideration of the grounds ". To do otherwise would " make the requirement for leave meaningless ": Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ. See also: MZXEN v Minister for Immigration and Citizenship [2007] FCA 829 at [10] , [2007] FCA 829 ; 240 ALR 582 at 584 to 585 per Jessup J. In Iyer their Honours also cited with approval the following observations of Branson and Katz JJ in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348: [8] In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration. These comments were obviously made prior to the 2005 amendments to the Federal Court of Australia Act 1976 (Cth) to permit appeals from migration decisions of the Federal Magistrates Court to be entertained by a single Judge or a Full Court: s 25(1AA). Many migration appeals to this Court from the Federal Magistrates Court are now resolved by a single Judge. But there remains the relevance of their Honours' observations as to the interests of other appellants. See also: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [3] to [5], 174 FCR 14 at 18 to 19 per Moore and Lander JJ. It matters not, in the present context, that the appeal is an appeal from a decision of the Federal Magistrate rather than a single Judge of this Court &#8212; which would, of course, require a Full Court.
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134
Outcome: discussed
considerations more generally relevant to the exercise of discretion have been identified by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] , [2005] FCAFC 134 ; 147 FCR 51 at 85 as including: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? Conti J agreed with Madgwick J and further observed at [229] that " where the Court is able to perceive an apparency of genuineness in the circumstances of an appellant, the principles cited by the Minister, for which Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 stand as authority, may be conceivably susceptible to a degree of modification or alleviation ". It has been said that " the practice which has been adopted in migration cases is that leave may be granted if a point has 'clear merit' and there is no prejudice to a respondent in permitting the point to be agitated; an adequate explanation for the failure to take the point below is required ... ": SZBJW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1356 at [22] per Jacobson J.
Case: SZBJW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1356
Outcome: cited
considerations more generally relevant to the exercise of discretion have been identified by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] , [2005] FCAFC 134 ; 147 FCR 51 at 85 as including: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? Conti J agreed with Madgwick J and further observed at [229] that " where the Court is able to perceive an apparency of genuineness in the circumstances of an appellant, the principles cited by the Minister, for which Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 stand as authority, may be conceivably susceptible to a degree of modification or alleviation ". It has been said that " the practice which has been adopted in migration cases is that leave may be granted if a point has 'clear merit' and there is no prejudice to a respondent in permitting the point to be agitated; an adequate explanation for the failure to take the point below is required ... ": SZBJW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1356 at [22] per Jacobson J.
Case: SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295
Outcome: cited
argument not raised at first instance may be raised on appeal where " it is expedient in the interests of justice to do so ": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so [references omitted]. [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. " To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant ": WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19] , [2004] FCA 106 ; 204 ALR 624 at 629 per French J (as His Honour then was). See also: SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295 at [16] to [17] per Lander J.
Case: SZJZV v Minister for Immigration and Citizenship [2008] FCA 628
Outcome: cited
final proposed Ground of Appeal is understood to be referring to SZATV v Minister for Immigration and Citizenship [2007] HCA 40 , 233 CLR 18. It was there concluded that a well-founded fear of persecution need not always extend to the whole territory of an applicant's country of nationality for the applicant to qualify as a refugee. It was further concluded that a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect the applicant to seek refuge in another part of the same country. Gummow, Hayne and Crennan JJ there concluded: [24] ... What is reasonable, in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. ... [26] ... [I]n particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography. Applied: SZJZV v Minister for Immigration and Citizenship [2008] FCA 628 at [17] to [18] per Gilmour J; SZMEI v Minister for Immigration and Citizenship [2008] FCA 1649 at [15] per Reeves J; SZLVG v Minister for Immigration and Citizenship [2008] FCA 1674 at [10] , 105 ALD 516 at 519 per Jagot J.
Case: SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 , 170 FCR 236
Outcome: cited
applied to the (then) Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 20 June 2006. A delegate refused that application on 29 July 2006. An application for review was thereafter lodged in August 2006 with the Refugee Review Tribunal and that Tribunal affirmed the delegate's decision on 20 December 2006. The Federal Magistrates Court dismissed an application for review but on 27 June 2008 this Court made orders remitting the matter to the Tribunal for determination according to law: SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 , 170 FCR 236.
Case: SZKCQ v Minister for Immigration and Citizenship [2009] FMCA 216
Outcome: affirmed
way of a decision signed on 3 October 2008, the Tribunal differently constituted again affirmed the decision not to grant a Protection (Class XA) visa. An application seeking review of this later decision of the Tribunal by the Federal Magistrates Court was dismissed: SZKCQ v Minister for Immigration and Citizenship [2009] FMCA 216. The Appellant now appeals to this Court. He has appeared before the Court this morning unrepresented, albeit with the benefit of an interpreter. The Grounds upon which he seeks to appeal are set forth in his Notice of Appeal (without alteration) as follows: 1. The grounds of the application are that the Tribunal failed to comply with a mandatory procedure prescribed by the Act, in failing to comply with section 424AA(b) (iv) of the Act. (a) His honour failed to find that Tribunal did not consider UNHRC section 4,5,8,9,10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdictional error. (b) His honour further error in establishing relief under SZATV vs Minister for Immigration and Citizenship [2007] HCA principles of relocation principles. Failing to accord proper procedural fairness in accordance with the internal relocation within the country. These Grounds of Appeal were not raised before the Federal Magistrate. The ground of review advanced before the Federal Magistrate was confined to a contention that it was " open to the Tribunal " to find that the now Appellant was a refugee. That ground was rejected. Moreover, the Grounds as are now sought to be relied upon are without merit. The appeal should be dismissed.