mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543
Outcome: cited
Counsel for the first respondent opposed the appellant being granted leave to raise those two grounds upon appeal as there are no exceptional circumstances warranting the grant of leave to do so, especially as the appellant was represented by counsel before the Federal Magistrate and has not sought to explain why those grounds were not raised before the Federal Magistrate: see Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18]; SZDJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 533 at [32] - [35] . He contended that the appellant should be bound by the conduct of the case before the Federal Magistrate.
Case: SZDJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 533
Outcome: cited
Counsel for the first respondent opposed the appellant being granted leave to raise those two grounds upon appeal as there are no exceptional circumstances warranting the grant of leave to do so, especially as the appellant was represented by counsel before the Federal Magistrate and has not sought to explain why those grounds were not raised before the Federal Magistrate: see Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18]; SZDJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 533 at [32] - [35] . He contended that the appellant should be bound by the conduct of the case before the Federal Magistrate.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: followed
As the merits of the proposed grounds of appeal are relevant to decide whether leave to appeal should be granted (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] ), it is appropriate first to address the proposed grounds of appeal to assess their merits. Realistically, as counsel for the first respondent acknowledged, if those grounds of appeal are likely to result in success on the appeal and the quashing of the decision of the Tribunal, given the significant implications to the appellant of the present decision of the Tribunal which would have him return to Bangladesh, there would be strong reason to allow the proposed grounds of appeal to be pursued: cf SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 at [66] ; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51.
Case: SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3
Outcome: cited
As the merits of the proposed grounds of appeal are relevant to decide whether leave to appeal should be granted (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] ), it is appropriate first to address the proposed grounds of appeal to assess their merits. Realistically, as counsel for the first respondent acknowledged, if those grounds of appeal are likely to result in success on the appeal and the quashing of the decision of the Tribunal, given the significant implications to the appellant of the present decision of the Tribunal which would have him return to Bangladesh, there would be strong reason to allow the proposed grounds of appeal to be pursued: cf SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 at [66] ; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51.
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: cited
As the merits of the proposed grounds of appeal are relevant to decide whether leave to appeal should be granted (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] ), it is appropriate first to address the proposed grounds of appeal to assess their merits. Realistically, as counsel for the first respondent acknowledged, if those grounds of appeal are likely to result in success on the appeal and the quashing of the decision of the Tribunal, given the significant implications to the appellant of the present decision of the Tribunal which would have him return to Bangladesh, there would be strong reason to allow the proposed grounds of appeal to be pursued: cf SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 at [66] ; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51.
Case: Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155
Outcome: cited
Alternatively, the first respondent contended, albeit perhaps with less enthusiasm, that the appellant before the Tribunal had adopted what he had put in his protection visa application and the accompanying statutory declaration subject to any additional qualifications, so that he "gave" the statutory declaration to the Tribunal for the purposes of his application for review: cf Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [17] . 36 It is not therefore necessary to consider the first respondent's alternative contention that the appellant, by explaining the circumstances in which the protection visa application and the accompanying statutory declaration had been made, had given to the Tribunal all the contents of the statutory declaration. There is, however, some apparent merit in that contention that he had thereby provided that material to the Tribunal, not as truthful information but as to the fact of having earlier given that information: cf Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155. 37 The second proposed ground of appeal involves identifying that the appellant did claim to have been persecuted by reason of his membership of a particular social group. The Tribunal acknowledged such a claim, but identified it as a claim of membership of a particular social group, being Buddhist monks. The appellant contends that his relevant social group was those involved in welfare activities for the Buddhist community, that is religious activists and social organisers within that community.
Case: SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138
Outcome: discussed
Clearly, s 424A(3)(b) must be carefully applied according to its terms. It exempts from the operation of s 424A(1) information which the appellant gave to the Tribunal for the purpose of the application to the Tribunal. And the observations of Young J in NBKT [2006] FCAFC 195 ; 93 ALD 333 indicate that the question of fact as to whether particular information has been given to the Tribunal may sometimes be a difficult one, and sometimes the line between giving information to the Tribunal and between adverting in a general way to a collection of material (such as the material presented to the first respondent in support of an application for a protection visa) in a hearing before the Tribunal may be a fine one. Each case must be looked at on its own particular facts. By way of a comparison with the facts in NBKT [2006] FCAFC 195 ; 93 ALD 333, in SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138 at [69] Jessup J concluded that the fact that that appellant's protection visa application contained a particular explanation for the death of his mother, which differed from that advanced by him at the hearing before the Tribunal, was a part of the reason for the Tribunal affirming the decision under review. The fact that he had conveyed that particular explanation in his protection visa information was accepted to be "information" within the terms of s 424A(1) of the Act and had not been given by that appellant in that case to the Tribunal. Consequently, his Honour concluded that there had been a failure to comply with s 424A(1) of the Act.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: followed
It is clear enough that a failure to address a Convention claim clearly made by a protection visa applicant which gives rise to a well-founded fear of persecution amounts to the Tribunal constructively failing to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 18-19, [58] .
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Outcome: followed
It is clear enough that a failure to address a Convention claim clearly made by a protection visa applicant which gives rise to a well-founded fear of persecution amounts to the Tribunal constructively failing to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 18-19, [58] .
Case: STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556
Outcome: cited
In my judgment, the second proposed ground of appeal must also fail. Upon analysis of the appellant's claims as presented to the Tribunal, he did not positively identify a claim based other than upon his religious beliefs as a Buddhist monk. Specifically, he did not either expressly, or by the articulation of the material he relied upon, identify separately a social group comprising socially active or politically active Buddhist welfare workers within the Buddhist community. At one point, his migration agent in a submission to the Tribunal describes him as "a social organiser within his community" but there is no identification of a separate and refined social group of the type now asserted: cf NABE 144 FCR at 21, [68]. The fact is, in my view, that no social group of that character was suggested to the Tribunal: cf STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 ; (2006) 231 ALR 556 at [39] .
Case: Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: cited
Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 Mason CJ and Gaudron J said (at 286 7): The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517, per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities: see, for example, Browne v Dunn (1893) 6 R 67 at 76; Mount Oxide Mines (1916) 22 CLR at 517-518.
Case: Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas [2009] FCA 639
Outcome: cited
Ms Chaloner produced evidence that she was suffering severe depression as well as anxiety attacks arising from her concerns about giving evidence in the proceedings. I reject the applicant's submission that her medical condition was "pure poppycock". However as my ruling earlier in these proceedings demonstrated ( Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas [2009] FCA 639) I was of the view that, despite these medical conditions, Ms Chaloner would be able to answer questions under cross-examination, and indeed she did so in a direct, detailed and honest manner. Further, I accept Ms Chaloner's evidence as to the mode of taking bookings between October 2008 and January 2009 because it was, and always had been, her job to take bookings for the HFAT business. Indeed commenting in relation to the booking records and Ms Chaloner's practice of entering bookings into an Excel spreadsheet, Ms Cummins conceded: It was her (that is, Ms Chaloner's) system; nobody else really understood it. (TS 22 June 2009 p 8 l 40) I make this observation, noting again the curious absence of any evidence from Ms Shelley Ratcliffe.
Case: Humphries v Halifax Vogel Group Proprietary Limited [2008] FCA 569 ; (2008) 76 IPR 144
Outcome: cited
is not a case where the legal issues inherent in claims of detinue, specific restitution, or pursuant to the Income Tax Assessment Act or the Corporations Act , were raised and litigated (contrast Nescor Industries Group Pty Ltd v MIBA Pty Ltd (1997) 150 ALR 633). It does not automatically follow that a claim for an order requiring the respondents to deliver chattels to the applicant introduced those causes of action to be met by the respondents indeed the pleadings equally support a claim for a mandatory injunction, or an order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) ( Humphries v Halifax Vogel Group Proprietary Limited [2008] FCA 569 ; (2008) 76 IPR 144). Accordingly, even had I made factual findings in favour of HFAT on the issue of whether Mr Rhys Thomas had taken the HFAT booking records, I consider that a decision on the previously undisclosed bases submitted by HFAT after judgment had been reserved would be procedurally unfair.
Case: Kioa v West [1985] HCA 81 ; (1984) 159 CLR 550
Outcome: cited
its Outline of Submissions in Reply, the respondents protested that to decide the application on one or more of the grounds raised by HFAT in its written submissions would, in the circumstances of the way in which HFAT conducted its case, constitute procedural unfairness as described by the High Court in Kioa v West [1985] HCA 81 ; (1984) 159 CLR 550 at 582-593. In light of the parties' detailed submissions with respect to possible grounds for decision in this case, I make the following observations. I consider that the respondents' submissions in this respect have merit. Nowhere in the application does HFAT plead the tort of detinue, the Income Tax Assessment Act , the Corporations Act or specific restitution. Not once during the course of the hearing were any of these causes of action raised by the solicitor for HFAT. The proceedings were not conducted on the basis that the respondents were required to meet a case in detinue, specific restitution, or based on the Income Tax Assessment Act or the Corporations Act .
Case: Nescor Industries Group Pty Ltd v MIBA Pty Ltd (1997) 150 ALR 633
Outcome: cited
is not a case where the legal issues inherent in claims of detinue, specific restitution, or pursuant to the Income Tax Assessment Act or the Corporations Act , were raised and litigated (contrast Nescor Industries Group Pty Ltd v MIBA Pty Ltd (1997) 150 ALR 633). It does not automatically follow that a claim for an order requiring the respondents to deliver chattels to the applicant introduced those causes of action to be met by the respondents indeed the pleadings equally support a claim for a mandatory injunction, or an order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) ( Humphries v Halifax Vogel Group Proprietary Limited [2008] FCA 569 ; (2008) 76 IPR 144). Accordingly, even had I made factual findings in favour of HFAT on the issue of whether Mr Rhys Thomas had taken the HFAT booking records, I consider that a decision on the previously undisclosed bases submitted by HFAT after judgment had been reserved would be procedurally unfair.
Case: Applicant S v MIMA [2004] HCA 25 ; (2004) 206 ALR 242
Outcome: cited
Tribunal accepted that Nepalese police officers could be considered to be members of a class of persons who possess a uniting feature or attribute, and that persons in that class are cognisable as a particular social group: Applicant S v MIMA [2004] HCA 25 ; (2004) 206 ALR 242 at [69] . However, it was not satisfied that there was a real chance that an essential or significant reason for persecution directed towards the appellant was because he was a member of the Nepalese police force or by reason of his imputed political opinion. This was, the Tribunal found, because the sole or dominant motive for the Maoists' targeting of the appellant was the satisfaction of a personal grudge against him and implicitly therefore not by reason of his imputed political opinion. Before the Federal Magistrate the appellant raised three grounds: The second respondent (the Tribunal) committed jurisdictional error by failing to ask itself the correct question, those being: (a) Whether the underlying cause of any revenge sought by the Maoists against the applicant was an opinion held by the appellant or imputed to him by his Maoist foes, that he had an ideological opposition to them. (b) Whether in light of all the facts and evidence that the Tribunal did accept or did not reject, the appellant had a well-founded fear of persecution for a Convention reason. (c) Whether, applying common sense to all the facts of the particular case, the appellant had a well-founded fear of persecution for a Convention reason. The Tribunal committed jurisdictional error in taking an irrelevant consideration into account that being that officers of the state, charged with protecting the state and its people are outside the protection of the Refugees Convention. The Tribunal committed jurisdictional error in its consideration of the issue of state protection in that it failed to consider how effective such protection may be. The Court below held that the first and second grounds were not made out although the third ground was made out. However, the Court refused relief in its discretion based on the finding that the earlier findings regarding the absence of Convention nexus were independent of the findings in respect to state protection and otherwise sustained the decision.
Case: Buultjens v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1058 
Outcome: cited
finding of the Tribunal that the sole or predominant reason for his being targeted by the Maoists was the satisfaction of a personal grudge against him was, so submits the first respondent, a finding of fact which cannot be reviewed: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 at [18]-[23]; Buultjens v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1058 at [12] and [13]. The first respondent further submits that the Court should not too readily find error in such a finding of non-satisfaction: NAAH of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 354 at [27] ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] . To do so, it submits, would involve the Court transgressing into merits review or finding that there was only one reasonable finding open to the Tribunal, being Convention related persecution for reason of political opinion or membership of a particular social group, notwithstanding the lack of evidence to support such an inference. Finally, it contends that there was no evidence that the Maoists in question wanted to harm the appellant because he was an agent of the state and the Court should not reconstruct those claims in a different or more articulate manner than they were put to the Tribunal: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] .
Case: NAAH of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 354
Outcome: cited
finding of the Tribunal that the sole or predominant reason for his being targeted by the Maoists was the satisfaction of a personal grudge against him was, so submits the first respondent, a finding of fact which cannot be reviewed: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 at [18]-[23]; Buultjens v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1058 at [12] and [13]. The first respondent further submits that the Court should not too readily find error in such a finding of non-satisfaction: NAAH of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 354 at [27] ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] . To do so, it submits, would involve the Court transgressing into merits review or finding that there was only one reasonable finding open to the Tribunal, being Convention related persecution for reason of political opinion or membership of a particular social group, notwithstanding the lack of evidence to support such an inference. Finally, it contends that there was no evidence that the Maoists in question wanted to harm the appellant because he was an agent of the state and the Court should not reconstruct those claims in a different or more articulate manner than they were put to the Tribunal: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] .
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Outcome: cited
finding of the Tribunal that the sole or predominant reason for his being targeted by the Maoists was the satisfaction of a personal grudge against him was, so submits the first respondent, a finding of fact which cannot be reviewed: Peiris v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 413 at [18]-[23]; Buultjens v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1058 at [12] and [13]. The first respondent further submits that the Court should not too readily find error in such a finding of non-satisfaction: NAAH of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 354 at [27] ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] . To do so, it submits, would involve the Court transgressing into merits review or finding that there was only one reasonable finding open to the Tribunal, being Convention related persecution for reason of political opinion or membership of a particular social group, notwithstanding the lack of evidence to support such an inference. Finally, it contends that there was no evidence that the Maoists in question wanted to harm the appellant because he was an agent of the state and the Court should not reconstruct those claims in a different or more articulate manner than they were put to the Tribunal: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] .