mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZERH v Minister for Immigration and Citizenship [2007] FCA 184
Outcome: cited
This ground of appeal is again substantially a restatement of the first ground of review before her Honour, in relation to which her Honour found against the appellant. In summary, the appellant submits that: &#8226; her Honour erred in finding that "it is not open to the Applicant to find any jurisdictional error in the case before this Court on a denial of procedural fairness arising out of a breach of s 427(1)(d)" by reason of the introduction of s 422B into the Act &#8226; her Honour's application of the Full Court's majority decision in Applicant M164 (2006) FCAFC 16 was misconceived in view of later Federal Court decisions applying the reasoning in Applicant M164 (2006) FCAFC 16 following the introduction of s 422B. Dr Azzi in particular drew the Court's attention to SZERH v MIC [2007] FCA 184 at [28] &#8226; the Tribunal committed jurisdictional error by not seeking to exercise its powers under s 427(1)(d) of the Act to require the Secretary to investigate the veracity of letters produced from various politicians which supported the claims of the appellant, where the need for such confirmation was "obvious" and where no impediments in terms of the addressee's location and details or issues of privacy and protection of the appellant dictated against the making of any such inquiries: Applicant M164 (2006) FCAFC 16. 29 This comment of the Full Court survives the enlivenment of s 422B. However contrary to the submission of the appellant, s 427(1)(d) is an enabling provision for the benefit of the Tribunal, and does not impose obligations on the Tribunal. The decision of Siopis J in SZERH [2007] FCA 184 in no way supports the submissions of the appellant on this point. 30 In relation to s 420 in the context of the appeal I have nothing to add to the comments of her Honour at [45]-[49] of her Honour's Reasons for Judgment. 31 I find no error in the decision of her Honour in relation to this ground of appeal. 32 In my opinion, the appropriate order is to dismiss the appeal with costs. ORDERS 1. The name of the first respondent be amended to Minister for Immigration and Citizenship. 2. The appeal be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 27 March 2007 Counsel for the Appellant: J Azzi Counsel for the Respondent: P Braham and L McBride Solicitor for the Respondent: Phillips Fox Date of Hearing: 27 February 2007 Date of Judgment: 27 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/428.html
Case: Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479
Outcome: cited
In VQAN , Heerey J concluded that even where there is no satisfactory explanation, the prospects of success of the appeal are relevant to the decision to grant an extension of time. His Honour noted that McHugh J had said in Marks at [13], with reference to his earlier judgment in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479, that '[a] "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months '.
Case: Howard v Australian Electoral Commission [2000] FCA 1767
Outcome: cited
That is not the end of the matter, however, as the Court has a discretion to grant or refuse the extension of time sought if special reasons exist. Relevant factors include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal ( Jess v Scott (1986) 12 FCR 187; Howard v Australian Electoral Commission [2000] FCA 1767 at [7] ).
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
That is not the end of the matter, however, as the Court has a discretion to grant or refuse the extension of time sought if special reasons exist. Relevant factors include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal ( Jess v Scott (1986) 12 FCR 187; Howard v Australian Electoral Commission [2000] FCA 1767 at [7] ).
Case: M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: considered
The applicant presented evidence from the Elder with respect to the specific issue of her attendance at church in Sydney (cf M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] ; SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [22] ). Unlike the evidence of the adviser, it was not evidence called by the Tribunal as part of its inquisitorial function (cf SAAP ). 24 In M164/2002 the Tribunal ' received information from the appellant's husband in the course of the hearing ' (at [97]). Justice Lee concluded that, if the Tribunal relied on alleged inconsistencies between that evidence and the evidence of the appellant, it was bound to set out in writing the perceived inconsistency between the information obtained at the hearing and the details provided by the appellant in her oral account and in the written accounts attached to the application for a visa, by reason of s 424A of the Act (at [99]). Justice Tamberlin agreed with the reasons of Lee J but did not comment further on this aspect. It is not clear to me that Lee J was saying that, where an applicant calls a witness to give oral evidence on her behalf, that is information outside the scope of s 424A(3)(b) any more than is a letter from a third person submitted by an applicant to the Tribunal in support of her application to the Tribunal. Justice Dowsett, who was in dissent, described at [186] what occurred as '[b] oth the appellant and her husband appear to have accepted that each was a relevant witness in establishing that case '. His Honour contrasted what occurred with information given "in evidence" by an applicant, to include all information put before the Tribunal by the applicant. An example of the latter was giving information to the Tribunal by calling a witness. Accordingly, I do not take Lee J as finding that evidence of a witness called by an applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.
Case: Re Commonwealth of Australia; ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: cited
In VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541 Heerey J considered the consequences of a very long delay. In that case, the delay was three and a half years and the explanation was detailed but his Honour did not consider that a satisfactory explanation had been proffered. In discussing the consequences of that delay, his Honour referred to Re Commonwealth of Australia; ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 where McHugh J observed at [16]: 'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.' 27 In VQAN , Heerey J concluded that even where there is no satisfactory explanation, the prospects of success of the appeal are relevant to the decision to grant an extension of time. His Honour noted that McHugh J had said in Marks at [13], with reference to his earlier judgment in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479, that '[a] "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months '.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
It is strongly arguable that Ms Sit's evidence and the information in the protection visa application formed part of the reasons of the Tribunal in its rejection of the applicant's claims because it rejected her credibility. If so, there was a failure on the part of the Tribunal to comply with s 424A(1) in respect of that information, such information not having been put to the applicant in writing. The fact that the evidence was given in the applicant's presence and that she was given the opportunity to comment on it and on the inconsistencies with her evidence to the Tribunal does not avoid the obligation to comply with s 424A(1) and (2) ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [110] ). 23 The applicant presented evidence from the Elder with respect to the specific issue of her attendance at church in Sydney (cf M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] ; SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [22] ). Unlike the evidence of the adviser, it was not evidence called by the Tribunal as part of its inquisitorial function (cf SAAP ).
Case: SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733
Outcome: cited
The applicant presented evidence from the Elder with respect to the specific issue of her attendance at church in Sydney (cf M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] ; SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [22] ). Unlike the evidence of the adviser, it was not evidence called by the Tribunal as part of its inquisitorial function (cf SAAP ).
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: applied
It is strongly arguable that Ms Sit's evidence and the information in the protection visa application formed part of the reasons of the Tribunal in its rejection of the applicant's claims because it rejected her credibility. If so, there was a failure on the part of the Tribunal to comply with s 424A(1) in respect of that information, such information not having been put to the applicant in writing. The fact that the evidence was given in the applicant's presence and that she was given the opportunity to comment on it and on the inconsistencies with her evidence to the Tribunal does not avoid the obligation to comply with s 424A(1) and (2) ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [110] ).
Case: VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541
Outcome: cited
In VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541 Heerey J considered the consequences of a very long delay. In that case, the delay was three and a half years and the explanation was detailed but his Honour did not consider that a satisfactory explanation had been proffered. In discussing the consequences of that delay, his Honour referred to Re Commonwealth of Australia; ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 where McHugh J observed at [16]: 'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.' 27 In VQAN , Heerey J concluded that even where there is no satisfactory explanation, the prospects of success of the appeal are relevant to the decision to grant an extension of time. His Honour noted that McHugh J had said in Marks at [13], with reference to his earlier judgment in Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479, that '[a] "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months '.
Case: Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230
Outcome: cited
With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230 at [17] ; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [64] ; (see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 ; (2001) 115 FCR 1 at 6 [27] ; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at 22 [38] - [41] ; NAUV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1319 at [42] ).
Case: Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Outcome: cited
In the circumstances, the Tribunal was not obliged to make further findings as to each factual matter or contention arising before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [65] - [67] ; Yusuf 180 ALR at [68], [73]-[74] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. The Tribunal was not obliged to make findings as to the quality of the appellants' migration agent or to refer specifically to the appellants' state of mind and how they may have been affected by their detention in Australia. The Tribunal was not obliged to take evidence from the migration agent who represented the appellants. I can find no merit in the second ground of appeal.
Case: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Outcome: cited
In the circumstances, the Tribunal was not obliged to make further findings as to each factual matter or contention arising before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [65] - [67] ; Yusuf 180 ALR at [68], [73]-[74] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. The Tribunal was not obliged to make findings as to the quality of the appellants' migration agent or to refer specifically to the appellants' state of mind and how they may have been affected by their detention in Australia. The Tribunal was not obliged to take evidence from the migration agent who represented the appellants. I can find no merit in the second ground of appeal.
Case: Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773
Outcome: cited
With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230 at [17] ; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [64] ; (see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 ; (2001) 115 FCR 1 at 6 [27] ; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at 22 [38] - [41] ; NAUV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1319 at [42] ).
Case: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188
Outcome: cited
With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230 at [17] ; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [64] ; (see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 ; (2001) 115 FCR 1 at 6 [27] ; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at 22 [38] - [41] ; NAUV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1319 at [42] ).
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 180 ALR 1
Outcome: cited
With respect to the second ground of appeal, the Tribunal referred to the evidence given by the appellants and the submissions made by their representatives. It considered the appellants' claims and gave its reasons for rejecting those claims. The appellants' fears arising from the publication of their role as police informants were rejected on credibility grounds. Their ethnicity and religious claims were rejected based on the Tribunal's consideration of independent country information. The Tribunal gave adequate and appropriate reasons for its decision in respect of those claims: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 180 ALR 1 at [68] . 26 In the circumstances, the Tribunal was not obliged to make further findings as to each factual matter or contention arising before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [65] - [67] ; Yusuf 180 ALR at [68], [73]-[74] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. The Tribunal was not obliged to make findings as to the quality of the appellants' migration agent or to refer specifically to the appellants' state of mind and how they may have been affected by their detention in Australia. The Tribunal was not obliged to take evidence from the migration agent who represented the appellants. I can find no merit in the second ground of appeal.
Case: NAUV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1319
Outcome: cited
With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230 at [17] ; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [64] ; (see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 ; (2001) 115 FCR 1 at 6 [27] ; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at 22 [38] - [41] ; NAUV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1319 at [42] ).
Case: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6
Outcome: cited
With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230 at [17] ; WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [64] ; (see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 ; (2001) 115 FCR 1 at 6 [27] ; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at 22 [38] - [41] ; NAUV v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1319 at [42] ).
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
In the circumstances, the Tribunal was not obliged to make further findings as to each factual matter or contention arising before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [65] - [67] ; Yusuf 180 ALR at [68], [73]-[74] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. The Tribunal was not obliged to make findings as to the quality of the appellants' migration agent or to refer specifically to the appellants' state of mind and how they may have been affected by their detention in Australia. The Tribunal was not obliged to take evidence from the migration agent who represented the appellants. I can find no merit in the second ground of appeal.