mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: VEAN of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 311 , 133 FCR 570
Outcome: followed
There is no power to " override " the time limitation prescribed by s 412(1)(b): VEAN of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 311 at [32] [33] per Gray, Whitlam and Mansfield JJ, [2003] FCAFC 311 ; 133 FCR 570. Their Honours there said that there was no analogy to the obligation to provide procedural fairness. The issue was not the procedural obligations imposed upon the Tribunal in performing its review function, but whether the Tribunal had power to entertain the application for review lodged out of time. See also: SZEBS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 456.
Case: VOAM v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 396
Outcome: cited
The " making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function ": Fernando v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 324 at [31] , [2000] FCA 324 ; 97 FCR 407 at 415 per Heerey J. Justice Finkelstein at [48] referred to the " need for the expeditious determination of the validity of an administrative decision " and continued: [49] It is also important to note that when Parliament conferred upon a non-citizen the right to apply to the Tribunal for the review of an RRT-reviewable decision, it also circumscribed that right by requiring it to be exercised within a stipulated period: see s31 of the Migration Reform Act 1992 (Cth) inserting into the Migration Act s166B permitting review and s166BA limiting the time for that review. This suggests that the right to review will cease to exist after the prescribed period has elapsed: compare Maxwell v Murphy (1957) 96 CLR 261 at 269 per Dixon CJ. [50] Then there is the language of s412 itself. An application for review "must" be given to the Tribunal within the prescribed period. If one adopts, as it is sometimes necessary to do, the maxim that Parliament says what it means and means what is says, the language adopted by the legislature strongly suggests that an application given to the Tribunal after the relevant period has elapsed is invalid. [51] The consequences of a contrary construction must also be taken into account. If an application can be made to the Tribunal after the prescribed period has elapsed then it can be made at any time thereafter. That is to say, if an application made beyond the prescribed period is a valid application, it will be valid if given one day or one year after that period. This result could not have been intended. [52] The appellant seeks to avoid this problem by arguing that the Tribunal has discretion whether or not to consider a late application. The argument is without foundation. The Tribunal has the jurisdiction conferred upon it by the Migration Act . If it is given a valid application for review it must determine that application according to its merits. The Tribunal has no power to refuse to consider a valid application. I leave out of account the question whether the Tribunal has power to strike out an application which is brought in abuse of process. It is not necessary to determine, on this appeal, whether an administrative tribunal has such a power. Dowsett J agreed: [2000] FCA 324 at [55] . The decision of the Full Court has since been repeatedly followed: VAQ v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 170 at [6] per Sundberg, Marshall and Weinberg JJ; MZNAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1126 ; VOAM v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 396 at [10] per French J.
Case: Black &amp; Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623
Outcome: cited
The applicant seeks leave to appeal from the interlocutory judgment of Finkelstein J given on 23 October 2007: Black &amp; Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623. His Honour refused the applicant leave to rely on certain affidavit evidence which was filed out of time. Leave to appeal will be refused. 6 The application for leave to appeal from the interlocutory judgment of Finkelstein J is refused and the appellant's motion dated 26 October 2007 is dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 2 November 2007 Counsel for the Appellant: R Garratt QC and J Samargis Solicitor for the Appellant: Kahns Lawyers Counsel for the Respondent: B Caine SC and G Fitzgerald Solicitor for the Respondent: Davies Collison Cave Date of Hearing: 2 November 2007 Date of Judgment: 2 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1680.html
Case: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: cited
As is clear from the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170, great restraint should be exercised in allowing leave to appeal in matters of practice and procedure. 3 I do not see any arguable case that his Honour's discretion miscarried. In particular, it was not necessary for him to make express reference to what was obviously common ground, namely that the evidence in question was relevant. Nor was it necessary for him to restate the trite fact that there is a public interest in invalid patents not remaining on the register.
Case: The State of Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
The State of Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 is not authority for the proposition that amendments, adjournments and other procedural indulgences must always be granted and that the balm of costs will always be sufficient. In this case his Honour made findings of fact as to the prejudice that would be suffered by Black &amp; Decker if this evidence was admitted. Those findings were open to him. His Honour was entitled to place considerable weight on the procedural record of GMCA. Whether or not criticism can be launched in this regard at Black &amp; Decker, the fact remains that time and again GMCA have sought to enlarge the case and produce further evidence without regard to the firm directions given by the Court. 5 This case is not concerned with particularly arcane technology, for expert evidence concerning which the parties might have to search throughout the world. It was incumbent on the parties to get their case in order long before now. The integrity of the court process is an important issue on which his Honour was entitled to place great weight.
Case: Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Outcome: cited
It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
Case: Minister for Immigration and Multicultural Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 ALR 340
Outcome: cited
In my view, however, the comments of Cameron FM in this respect at [15]-[16] of his Honour's judgment are correct. I agree with his Honour that it was not necessary for the Tribunal to consider the nature of such further incidents of violence and whether the appellant might be the recipient of further incidents as alleged, as this suggests that the Tribunal had an obligation either to speculate or to make inquiries when it was the appellant's task to make out her claim. In any event, in my view it is clear that the Tribunal had completed its task in considering whether, because of the accord, the appellant continued to have a well-founded fear of persecution. As Ms Clegg submitted, the majority of the High Court in Minister for Immigration and Multicultural Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 ALR 340, in particular at [43]-[50], held that it is open to the Tribunal to take into account changed country circumstances in order to conclude that the appellant was not a refugee at the time the Tribunal's decision was made. Further, as Gleeson CJ and Hayne and Heydon JJ observed in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 at 11 in relation to relevant random and uncoordinated acts of violence in that case, "No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance..."
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: cited
In my view, however, the comments of Cameron FM in this respect at [15]-[16] of his Honour's judgment are correct. I agree with his Honour that it was not necessary for the Tribunal to consider the nature of such further incidents of violence and whether the appellant might be the recipient of further incidents as alleged, as this suggests that the Tribunal had an obligation either to speculate or to make inquiries when it was the appellant's task to make out her claim. In any event, in my view it is clear that the Tribunal had completed its task in considering whether, because of the accord, the appellant continued to have a well-founded fear of persecution. As Ms Clegg submitted, the majority of the High Court in Minister for Immigration and Multicultural Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 ALR 340, in particular at [43]-[50], held that it is open to the Tribunal to take into account changed country circumstances in order to conclude that the appellant was not a refugee at the time the Tribunal's decision was made. Further, as Gleeson CJ and Hayne and Heydon JJ observed in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 at 11 in relation to relevant random and uncoordinated acts of violence in that case, "No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance..."
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: applied
The background to the enactment of s 424A(3)(b) was considered at length by Merkel and Hely JJ in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. In that case their Honours stipulated that, in order for information to fall within s 424A(3)(a) and therefore be excluded from the application of s 424A(1) , it must be information not specifically about the applicant or another person. The further reference to information that is "just about a class of persons of which the applicant or other person is a member" is not a second criterion to be met, but is designed to underline the specificity required by precluding any argument that reference to a class could be taken as reference to all individuals (including, for example, an applicant) falling in it ( NAMW 140 FCR at 599-600). The reasoning in NAMW [2004] FCAFC 264 ; 140 FCR 572 was also adopted by the Full Court in WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330. 35 Accordingly, examples of information excluded by section 424A (3)(a) are: &#8226; country information: NAMW [2004] FCAFC 264 ; 140 FCR 572, SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346 and SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 &#8226; information from a university website as to the content of a marketing degree course SZFLL v Minister for Immigration and Citizenship [2007] FCA 355 &#8226; information from Canadian source material, telephone interviews, DFAT and UK Home Office material that it would be difficult to leave the relevant country if one was wanted by the authorities: WAJW [2004] FCAFC 330. 37 I do not accept the submission of Mr Young that the relevant information upon which the Tribunal was relying in its decision of 8 February 2007 pertained only to whether people could fly directly from Australia to India if they were in possession of a valid Nepalese passport. From the material I have set out above it is clear that there exists information in the public domain concerning the lack of restriction on persons holding Nepalese passports to enter India, and although not identified as such as it was in the decision of the Tribunal as first constituted, it was upon this information that the Tribunal was clearly relying in both its letter to the appellant and its decision of 8 February 2007. This was information not specifically about the appellant or another person. It concerned a class of persons, of which the appellant was a member, namely all Nepalese citizens with passports. Although not specifically identified as such, it was information akin to country information. It is at least analogous to the information the subject of the decision in WAJW [2004] FCAFC 264 ; 140 FCR 572.
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Outcome: cited
It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: cited
It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
These grounds of appeal require consideration of s 424A Migration Act , a provision which frequently arises for consideration in the context of review of decisions of the Tribunal. It is not in contention that breach of this section by the Tribunal constitutes jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 24 Section 424A provides as follows: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A ; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant for review gave for the purpose of the application; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information.
Case: SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346
Outcome: cited
Accordingly, examples of information excluded by section 424A (3)(a) are: &#8226; country information: NAMW [2004] FCAFC 264 ; 140 FCR 572, SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346 and SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 &#8226; information from a university website as to the content of a marketing degree course SZFLL v Minister for Immigration and Citizenship [2007] FCA 355 &#8226; information from Canadian source material, telephone interviews, DFAT and UK Home Office material that it would be difficult to leave the relevant country if one was wanted by the authorities: WAJW [2004] FCAFC 330.
Case: SZFLL v Minister for Immigration and Citizenship [2007] FCA 355
Outcome: cited
Accordingly, examples of information excluded by section 424A (3)(a) are: &#8226; country information: NAMW [2004] FCAFC 264 ; 140 FCR 572, SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346 and SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 &#8226; information from a university website as to the content of a marketing degree course SZFLL v Minister for Immigration and Citizenship [2007] FCA 355 &#8226; information from Canadian source material, telephone interviews, DFAT and UK Home Office material that it would be difficult to leave the relevant country if one was wanted by the authorities: WAJW [2004] FCAFC 330.
Case: SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091
Outcome: cited
Accordingly, examples of information excluded by section 424A (3)(a) are: &#8226; country information: NAMW [2004] FCAFC 264 ; 140 FCR 572, SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346 and SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 &#8226; information from a university website as to the content of a marketing degree course SZFLL v Minister for Immigration and Citizenship [2007] FCA 355 &#8226; information from Canadian source material, telephone interviews, DFAT and UK Home Office material that it would be difficult to leave the relevant country if one was wanted by the authorities: WAJW [2004] FCAFC 330.
Case: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
Outcome: cited
The term "information" within s 424A(1) was considered by the Full Court in VAF 206 ALR at 476 and defined by Finn and Stone JJ in that case to refer to: "...knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3] , irrespective of whether it is reliable or has a sound factual basis: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at [19] [22]." 30 It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.