mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319
Outcome: cited
s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.
Case: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471
Outcome: cited
s 43(2B) does not impose any constraint as to the manner in which the Tribunal is to make " reference " to either evidence or other material upon which it proceeds to " base " its findings. The greater the conflict in the evidence, the greater may be the need for the Tribunal to make " reference " to the conflicting evidence and to set forth that evidence upon which it proceeds to " base " its findings, and to set forth its reasons for rejecting some evidence and accepting other evidence: Copperart Pty Ltd v Commissioner of Taxation [1993] FCA 462 ; (1993) 30 ALD 377 per Hill J. Although there is no necessity for the Tribunal to refer to every piece of evidence adduced before the Tribunal, a failure to advert to relevant evidence may lead to a conclusion that it has been ignored: Waldron v Comcare Australia [1995] FCA 1154 ; (1995) 37 ALD 471 at 477 per Burchett J; Centrelink v Dykstra [2002] FCA 1442 at [20] . As observed by French, Sackville and Hely JJ in Applicant WAEE , supra : [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. ... It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. A failure to refer to material which is " fundamental " may lead to a conclusion that there has been jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ.
Case: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988
Outcome: cited
not every failure to hear and resolve every submission necessarily gives rise to such a question. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 to 277, Jenkinson J expressed the position as follows: There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376. Woodward and Foster JJ agreed. Subsequently, in Australian Postal Corporation v Sellick , supra , at [35], Bennett J also referred to the need to address a submission of " substance " or a submission which would have " affected the outcome ". See also: Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988 at [29] per Siopis J; Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302 at [29] per Collier J.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
any event an error of fact does not amount to error of law: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . To grant relief for such an error would be to grant merits review, which is impermissible ( Wu Shan Liang at [272]). No jurisdictional error is made out.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
Federal Magistrate rejected ground 2 of the amended application, on the basis that it was, in effect, a request for impermissible merits review. This finding and approach were correct: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. By notice of appeal filed on 5 January 2007 the appellant raises the following unparticularised grounds, that essentially assert that the Federal Magistrate erred, by not finding that the Tribunal erred as alleged in the grounds below: 1. It is not reasonable that the Refugee Review Tribunal did not accept that I am a Falun Gong practitioner while the Tribunal accepts that I have ever observed other persons practice Falun Gong in China. 2. The decision made by the Tribunal is illogical. 3. I believe that my fear of persecution is well-founded. At the hearing of the appeal before me the appellant, assisted by an interpreter essentially repeated the content of her grounds of appeal and overall sought to challenge the findings of fact by the Tribunal that she was not nor ever had been a practitioner of Falun Gong. In any event an error of fact does not amount to error of law: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . To grant relief for such an error would be to grant merits review, which is impermissible ( Wu Shan Liang at [272]). No jurisdictional error is made out. Ground 3 is, in substance, an impermissible application for merits review: Wu Shan Liang at [272]. In my opinion, the approach taken and the findings of the Tribunal and the Federal Magistrate were correct. No jurisdictional error has been made out. The appeal must be dismissed. The appellant should pay the costs of the first respondent, fixed at $2,800. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 30 April 2007 The Appellant appeared for herself: Counsel for the Respondent: B O'Donnell Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 2007 Date of Judgment: 30 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/609.html
Case: Re Minister; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
Tribunal concluded that although it was accepted that the appellant may have observed other people practising Falun Gong in both China and Australia, the appellant herself was not a Falun Gong practitioner. There is nothing, in my opinion, which is either not reasonable or illogical in this finding. Observing other practitioners of Falun Gong, of itself, says nothing about whether the appellant was or was not herself such a practitioner. The finding of fact of the Tribunal that she was not a practitioner of Falun Gong was the product of the Tribunal's evaluation of the credibility of the appellant's testimony based on internal consistency, inherent implausibility and consistency with independent country information that was clearly within the Tribunal's jurisdiction: Re Minister; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 (HCA) at [67]; W148/00A v Minister (2001) 185 ALR 703 (FCAFC) at [64]-[65]. The Tribunal, as the primary fact finder, has stated in its findings that it did not believe the appellant to be a Falun Gong practitioner. Although the Tribunal must give reasons for its decision, it is not required to give reasons for each particular finding in relation to the appellant's claims ( Re Minister; Ex parte Durairajasingham at [67]).
Case: W148/00A v Minister (2001) 185 ALR 703
Outcome: cited
Tribunal concluded that although it was accepted that the appellant may have observed other people practising Falun Gong in both China and Australia, the appellant herself was not a Falun Gong practitioner. There is nothing, in my opinion, which is either not reasonable or illogical in this finding. Observing other practitioners of Falun Gong, of itself, says nothing about whether the appellant was or was not herself such a practitioner. The finding of fact of the Tribunal that she was not a practitioner of Falun Gong was the product of the Tribunal's evaluation of the credibility of the appellant's testimony based on internal consistency, inherent implausibility and consistency with independent country information that was clearly within the Tribunal's jurisdiction: Re Minister; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 (HCA) at [67]; W148/00A v Minister (2001) 185 ALR 703 (FCAFC) at [64]-[65].
Case: WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184
Outcome: cited
relation to the amended grounds his Honour rejected ground 1 on the basis that, while the Tribunal did not mention the appellant's claim to have lost her employment at the end of her detention in the key paragraphs under the heading "Findings and Reasons", it had earlier identified the claim as part of the appellant's application to the delegate and noted that the statement containing it had accompanied the appellant's review application. The Tribunal, as he stated was clearly aware of that element of the applicant's claims" and dealt with it as part of a more general conclusion. This approach was in my opinion correct: WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 at [47] .
Case: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: considered
It is apparent from the applicant's oral submissions that she seeks an impermissible merits review of the Tribunal decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . There is no jurisdictional error apparent in the Tribunal's decision or in the decision of Smith FM. The Court is satisfied that there is no merit in the applicant's substantial application.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: applied
The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules. 22 As to delay, the applicant claimed at the hearing before the Court that her ignorance of Court procedure resulted in her failure to comply with O 52 r 5(2) of the Rules. Because the applicant is unrepresented and the delay is not extensive, the Court is prepared to accept this explanation. 23 There is no evidence before the Court that the Minister would be prejudiced if the Court were to grant an order dispensing with compliance with O 52 r 5(2) of the Rules.
Case: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Outcome: considered
In considering the merits of the substantial application, the Court observes that the first ground alleging bias by the Tribunal had not been raised before Smith FM. Accordingly leave would be required for the applicant to raise such ground on appeal: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] - [24] . Leave may be granted if it is 'expedient in the interests of justice to allow the new ground to be argued and determined' : see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26].
Case: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: considered
It is apparent from the applicant's oral submissions that she seeks an impermissible merits review of the Tribunal decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . There is no jurisdictional error apparent in the Tribunal's decision or in the decision of Smith FM. The Court is satisfied that there is no merit in the applicant's substantial application.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: considered
It is apparent from the applicant's oral submissions that she seeks an impermissible merits review of the Tribunal decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 at 40-42; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . There is no jurisdictional error apparent in the Tribunal's decision or in the decision of Smith FM. The Court is satisfied that there is no merit in the applicant's substantial application.
Case: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358
Outcome: considered
As no transcript of the Tribunal hearing has been put before the Court, the only evidence before the Court of the Tribunal's conduct of the proceeding is the Tribunal hearing record and the Tribunal decision itself. The Court observes that ' [i] t is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves' : see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] ; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] . In the present proceeding the Tribunal decision reveals no bias against the applicant.
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Outcome: considered
As no transcript of the Tribunal hearing has been put before the Court, the only evidence before the Court of the Tribunal's conduct of the proceeding is the Tribunal hearing record and the Tribunal decision itself. The Court observes that ' [i] t is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves' : see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] ; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] . In the present proceeding the Tribunal decision reveals no bias against the applicant.
Case: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Outcome: considered
As no transcript of the Tribunal hearing has been put before the Court, the only evidence before the Court of the Tribunal's conduct of the proceeding is the Tribunal hearing record and the Tribunal decision itself. The Court observes that ' [i] t is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves' : see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] ; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] . In the present proceeding the Tribunal decision reveals no bias against the applicant.
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: considered
In considering the merits of the substantial application, the Court observes that the first ground alleging bias by the Tribunal had not been raised before Smith FM. Accordingly leave would be required for the applicant to raise such ground on appeal: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] - [24] . Leave may be granted if it is 'expedient in the interests of justice to allow the new ground to be argued and determined' : see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26].
Case: Re Taxpayer and Federal Commissioner of Taxation [2006] AATA 750 ; (2006) 64 ATR 1075
Outcome: affirmed
The appellant taxpayer appeals from a decision of the Administrative Appeals Tribunal (Mr BH Pascoe, Senior Member) which affirmed an objection decision of the respondent Deputy Commissioner in respect of the 1997 and 1998 tax years: Re Taxpayer and Federal Commissioner of Taxation [2006] AATA 750 ; (2006) 64 ATR 1075. The assessments resulted from an audit of the affairs of the appellant. The issues on the appeal concern the ascertainment of gross sales and the deduction of purchases in connection with a retail business carried on by the appellant. 2 Under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) an appeal lies to the Federal Court only on a question of law. 3 In October 1995 the appellant commenced a duty free retail business in Springvale, Victoria. In January 2002 the Australian Tax Office conducted an audit of the appellant's affairs. An assessment was issued for 1997 and an amended assessment for 1998. After extensive discussions with the appellant's then accountant, objections were allowed in part.
Case: Trautwein v Federal Commissioner of Taxation [1936] HCA 77 ; (1936) 56 CLR 63
Outcome: applied
I am not persuaded that any of these questions are truly questions of law for the purpose of s 44(1) of the Act. While counsel for the Commissioner accepts that a question whether a finding was based on no evidence would be a question of law, the present case has to be considered in light of the onus of proof imposed on the taxpayer by s 14ZZK(b)(i) of the Taxation Administration Act 1953 (Cth). The appellant has to prove not only a case of error, but what the correct assessment was: Trautwein v Federal Commissioner of Taxation [1936] HCA 77 ; (1936) 56 CLR 63 at 88, Federal Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 at 623. Questions as to what were the true amount of the appellant's gross income and purchases in the 1997 year were questions of fact. For the reasons explained by the Tribunal, the appellant did not establish any different figures from those assessed by the Commissioner on the basis of the appellant's own financial records, such as they were.
Case: Federal Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614
Outcome: applied
I am not persuaded that any of these questions are truly questions of law for the purpose of s 44(1) of the Act. While counsel for the Commissioner accepts that a question whether a finding was based on no evidence would be a question of law, the present case has to be considered in light of the onus of proof imposed on the taxpayer by s 14ZZK(b)(i) of the Taxation Administration Act 1953 (Cth). The appellant has to prove not only a case of error, but what the correct assessment was: Trautwein v Federal Commissioner of Taxation [1936] HCA 77 ; (1936) 56 CLR 63 at 88, Federal Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614 at 623. Questions as to what were the true amount of the appellant's gross income and purchases in the 1997 year were questions of fact. For the reasons explained by the Tribunal, the appellant did not establish any different figures from those assessed by the Commissioner on the basis of the appellant's own financial records, such as they were.