mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
Outcome: referred to
In NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that "the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance". Bennett J referred to this decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] . Her Honour also referred to the observations of Sundberg and Hely JJ in VNAA that the RRT is authorised to proceed even though an applicant's failure to attend involved no fault on his or her part.
Case: NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
Outcome: referred to
It is clear from Hely J's reasons for judgment in NAHF that his Honour decided the matter upon the basis of a denial of procedural fairness rather than the content of the statutory obligation under s 425. Thus, it may be that the Full Court in SCAR misconstrued his Honour's decision; see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] . However, it is not necessary for me to decide that question, even assuming that it is open to me to do so. Nor is it necessary for me to decide whether the effect of the authorities to which Hely J referred in NAHF establish that the requirements of s 425 are, as was contended by the appellant, substantive rather than formal.
Case: O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2004) 74 ALD 407
Outcome: referred to
In O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2004) 74 ALD 407 at [49] , Sackville J pointed out that it is true that in the typical case of denial of procedural fairness the decision maker is responsible for the breach. His Honour observed that this does not mean that the decision maker must be personally at fault before there can be a denial of procedural fairness. He referred to the observation of Gleeson CJ in Hot Holdings.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: referred to
Moreover, it is well established that it is no part of the decision maker's duty to make out an applicant's case for him or her; see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. The procedure is inquisitorial. It is for an applicant to advance whatever evidence or argument he or she wishes to advance in support of the contention of the well founded fear of persecution for a Convention reason; see Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.
Case: R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21 ; [1999] 2 AC 330
Outcome: referred to
Sackville J went on at [50] to point out that one of the cases cited by Gleeson CJ for this proposition was R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21 ; [1999] 2 AC 330 (" Ex parte A "). Sackville remarked at [52] that the High Court has not greeted the decision in Ex parte A with "unalloyed enthusiasm"; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441 at [37] [42]. 28 Indeed, in STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [19] , Selway J was of the view that Ex parte A does not reflect the law in Australia. His Honour considered that there may be some limited circumstances where it might be arguable that acts by Departmental officers or others could invalidate a Tribunal decision even though the Tribunal was unaware of them; see at [22] citing, inter alia, Hot Holdings at 455-456 per Gaudron, Gummow and Hayne JJ.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
The appellant also submitted that the observations of McHugh J and Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [150] and [219] support the proposition that it is open to the Court to take into account the fault of an applicant's adviser. However, their Honours were there considering the question of whether the adviser's default should be taken into account in determining whether an applicant's delay was a discretionary bar to the grant of Constitutional writs. Their observations on that question have no bearing on the issues arising in this appeal. 38 This ground of appeal only needs to be stated to be rejected. What the appellant contends is that, notwithstanding his written notification declining the invitation to attend the oral hearing, the RRT should nevertheless have exercised its power to summons him to attend.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441
Outcome: cited
Sackville J went on at [50] to point out that one of the cases cited by Gleeson CJ for this proposition was R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21 ; [1999] 2 AC 330 (" Ex parte A "). Sackville remarked at [52] that the High Court has not greeted the decision in Ex parte A with "unalloyed enthusiasm"; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441 at [37] [42].
Case: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
Outcome: referred to
As a Full Court said in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [46] , there would be no unfairness when the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. Their Honours said that an appellant cannot complain if his application is rejected because the decision maker without notice to him has rejected what was put forward; see also the observations of a Full Court in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 (" S58 ") at [25] [26] which are apt in the present case. I reject the appellant's submission that S58 is distinguishable. 36 The appellant also submitted that the RRT was bound to advise him as a matter of procedural fairness that his application was doomed to failure if he did not attend the hearing. In my opinion the invitation dated 10 November 2003 was sufficient notice to the appellant of the risk; see S58 at [25] [26].
Case: SBA Foods Pty Limited v Victorian WorkCover Authority &amp; Anor [2001] VSC 276
Outcome: cited
In B41, Dowsett J referred at [23] to two Victorian decisions to the same effect; see SBA Foods Pty Limited v Victorian WorkCover Authority &amp; Anor [2001] VSC 276 at [274] [283] per Gillard J; see also Stefanovski v County Court of Victoria &amp; Anor [2000] VSC 417 at [175] [190] per Gillard J.
Case: Stefanovski v County Court of Victoria &amp; Anor [2000] VSC 417
Outcome: cited
In B41, Dowsett J referred at [23] to two Victorian decisions to the same effect; see SBA Foods Pty Limited v Victorian WorkCover Authority &amp; Anor [2001] VSC 276 at [274] [283] per Gillard J; see also Stefanovski v County Court of Victoria &amp; Anor [2000] VSC 417 at [175] [190] per Gillard J.
Case: STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546
Outcome: referred to
Indeed, in STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [19] , Selway J was of the view that Ex parte A does not reflect the law in Australia. His Honour considered that there may be some limited circumstances where it might be arguable that acts by Departmental officers or others could invalidate a Tribunal decision even though the Tribunal was unaware of them; see at [22] citing, inter alia, Hot Holdings at 455-456 per Gaudron, Gummow and Hayne JJ.
Case: STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 251
Outcome: cited
An appeal from Selway's decision at first instance was dismissed without the need to consider that question; see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 251.
Case: SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457
Outcome: referred to
In NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that "the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance". Bennett J referred to this decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] . Her Honour also referred to the observations of Sundberg and Hely JJ in VNAA that the RRT is authorised to proceed even though an applicant's failure to attend involved no fault on his or her part.
Case: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407
Outcome: referred to
Dowsett J's observations in B41 as to the approach to be taken in such matters is consistent with the remarks of Sundberg and Hely JJ in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 (" VNAA ") at [15] [16]. Their Honours there pointed out that the scheme of Part 7 of the Act expressly contemplates that in particular circumstances an applicant will not attend a hearing including cases involving no fault of the applicant. They said that, notwithstanding this, the RRT is authorised to proceed to decide the review in the applicant's absence. 25 In NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that "the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance". Bennett J referred to this decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] . Her Honour also referred to the observations of Sundberg and Hely JJ in VNAA that the RRT is authorised to proceed even though an applicant's failure to attend involved no fault on his or her part.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: cited
learned Federal Magistrate (at para 7) had observed: "There was no obligation on the Tribunal to make a disclosure pursuant to s 424A in this case. That is because the Tribunal decision turned upon the applicants' own evidence, both oral and written." The reason assigned by the Tribunal accurately, if generally, describes what came to govern the fate of the Appellants' review application before the Tribunal. A more precise description was offered by the Minister in his submissions: "The Tribunal relied upon internal inconsistencies and inconsistencies in the oral evidence provided by the [male Appellant] to the differently constituted Tribunals". As the Minister correctly submitted, "such reliance does not invoke s 424A obligations": SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190. There was no error in the learned Federal Magistrate's dismissal of the judicial review application insofar as it relied upon an alleged breach of s 424A of the Act by the Tribunal. Subject to exceptions not presently relevant, s 425 of the Migration Act obliged the Tribunal to invite the Appellants to appear before it, "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The Tribunal extended such an invitation to the Appellants. They accepted that invitation and appeared before the Tribunal. The learned Federal Magistrate's description of and conclusion with respect to what then transpired was as follows (at para 11): It is plain from the record of what occurred at the hearing that the Tribunal entertained serious credibility concerns about the first applicant's claims and his evidence. The Tribunal proceeded on a somewhat different basis than the delegate. The delegate's decision centred on the vagueness of the applicants' claims and the lack of supporting detail. The first applicant attempted to deal with that defect before the Tribunal by providing details, both orally and in the form of documents. The Tribunal did not accept either the plausibility of his evidence or the authenticity of his critical documents. I am satisfied from the detailed recitation of what occurred at the Tribunal hearing that the Tribunal put the applicants on notice of the essential and significant issues upon which the review would turn. On this basis, the learned Federal Magistrate concluded that the Appellants had been given a fair opportunity to present their case and expressed satisfaction that there had been no breach by the Tribunal of s 425 of the Migration Act . It is evident from the learned Federal Magistrate's reasons for judgment that the Appellants filed no written submissions in advance of the hearing and that the male Appellant made a general complaint about a lack of fairness attending the proceedings before the Tribunal.
Case: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43
Outcome: cited
these were not express bases of challenge in the Federal Magistrates Court to the Tribunal's decision in respect of the rehearing of the review application, leave to raise these grounds would be necessary: see H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. In their joint judgment in that case (at para 7, p 45) Branson and Katz JJ draw attention to an observation earlier made in the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 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 area 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.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: considered
these were not express bases of challenge in the Federal Magistrates Court to the Tribunal's decision in respect of the rehearing of the review application, leave to raise these grounds would be necessary: see H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. In their joint judgment in that case (at para 7, p 45) Branson and Katz JJ draw attention to an observation earlier made in the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 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 area 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.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: applied
to add a ground of appeal not raised below should only be granted where it is expedient in the interests of justice so to do: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] . Inevitably, whether or not to grant leave to add such grounds to the notice of appeal requires some exploration of their merits. For reasons which follow, that exploration persuades me that, in the particular circumstances of this case, the Appellants should have leave to raise the grounds identified in para 24 above. The consideration arising from the letter of 6 March 2007 which prompted me not to dismiss the appeal peremptorily but rather to adjourn the hearing so as to afford the Minister an opportunity to make further submissions and thereafter to reserve my decision arose from the words emphasised at the foot of the letter of 6 March 2007. It is evident on the face of this letter that, at least purportedly, it was created after the Appellants had both left China and lodged their protection visa application here, that it is referring to steps which have just been taken in light of recent events with which the male Appellant was concerned and that a duplicate of the letter is to be sent, materially, to him as well as to the addressees of the letter. While, if genuine, the letter of 6 March 2007 does not corroborate the detail of the claim made by the Appellants, it does corroborate the claim in the general sense of confirming that the male Appellant had held a responsible position at the Aquatic Farm, had been involved in some sort of "dissident" activity and had, in so doing, come to the adverse attention of the People's Security Bureau (PSB). It is truly, in this sense, a "critical document".
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405
Outcome: considered
was a particularly powerful submission, which has occasioned me quite some angst with respect to whether it is open to find any error in the decision of the Federal Magistrates Court, having regard to the proper role of that court as a reviewing court on judicial review. Ordinarily, a conclusion reached by the Tribunal concerning the credibility of a visa applicant is a finding of fact "par excellence" for the Tribunal to make: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at [67] . Further, when addressing the subject of the judicial review of findings of fact in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356 ( Bond's case ) Mason CJ observed: [At] common law, according to the Australian authorities, want of logic is not synonymous with error of law So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: considered
was a particularly powerful submission, which has occasioned me quite some angst with respect to whether it is open to find any error in the decision of the Federal Magistrates Court, having regard to the proper role of that court as a reviewing court on judicial review. Ordinarily, a conclusion reached by the Tribunal concerning the credibility of a visa applicant is a finding of fact "par excellence" for the Tribunal to make: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at [67] . Further, when addressing the subject of the judicial review of findings of fact in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356 ( Bond's case ) Mason CJ observed: [At] common law, according to the Australian authorities, want of logic is not synonymous with error of law So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place
Case: SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192
Outcome: considered
all due respect to the Tribunal and in the sense they are used by Lee J, the adjectives "ignorant", "arbitrary" and "perverse" aptly apply to a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document. What follows from this, to take up sentiments voiced by Allsop J (in SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 at [10] ) in the passage I have quoted from Judicial Review of Administrative Action , is that the Tribunal has failed to attend conscientiously and appropriately to its statutory obligations and the Federal Magistrates Court has failed to apprehend this. An alternative way of approaching matters is also exposed by the learned authors of Judicial Review of Administrative Action under the heading "Fact review by the imaginative uses of other grounds" (at p 273 et seq). While I should respectfully question the aptness of the descriptor, "imaginative", it is nonetheless, in my opinion, a denial of procedural fairness to a visa applicant for the Tribunal to subject him to questioning, upon the answers to which findings as to credibility come to be made, upon a false factual premise with respect to a critical document. That false premise is that the letter of 6 March 2007 was not addressed to him. In a narrow sense that is true but, reading the letter as a whole, it is plain on its face that he was an intended addressee insofar as the dispatch of duplicates was concerned.
Case: SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 ; (2007) 238 ALR 611
Outcome: considered
a footnote (p 275, fn 606) in this part of their work the learned authors of Judicial Review of Administrative Action instance SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 ; (2007) 238 ALR 611 ( SZIFI ) as a case which, even though Dranichnikov is not mentioned, offers a good example of the type of procedural fairness error for which they contend Dranichnikov stands. In SZIFI Greenwood J observed (at 614, [43]): [43] Once it is established that the tribunal has asked itself the wrong question by, for example, asking whether it can be satisfied that the appellant faces a real chance of persecution should he return to the People's Republic of China, or has identified the wrong issue, or taken into account, in one part of its deliberations, a notion that the appellant is an Indonesian rather than a Pakistani national, the tribunal is seen to have failed to provide the appellant with procedural fairness and thus jurisdictional error arises ( Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ). The repository of the power is constrained by an obligation to act reasonably by providing procedural fairness. A decision made in light of a failure to act reasonably is not a decision made under the Act for the purposes of s 474.