mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124
Outcome: applied
In relation to this submission, the respondent submits that the Tribunal was not required to consider expressly every matter raised by the applicant: see Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124. Further, the respondent says that the applicant expressly disavowed reliance upon the ground of aggravation before the Tribunal (see the portion of the transcript set out at [8] above), and that accordingly he was not entitled to raise it on appeal, and relies upon Coulton and Ors v Holcombe and Ors [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8. 57 In these circumstances, and even having taken into account the fact that the applicant was unrepresented, I consider that the evidence was insufficient to raise this question as a real issue in the proceedings. In coming to this conclusion, I bear in mind the observations of Woodward J in Charvid , where his Honour said (at 129): 'Counsel relied ... on s 43 of the Administrative Appeals Tribunal Act 1975 , which requires the Tribunal to give reasons for its decision, which, if in writing, "shall include its findings on material questions of fact and a reference to the evidence ... on which those findings were based". Arising from this requirement, it is to be assumed that any matters not dealt with in the Tribunal's reasons must have been found to be not material to its decision: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 353. There could, however, be two reasons for a matter raised in the hearing not being dealt with in the decision. It could be that the Tribunal took the view that, whatever the state of the evidence, the matter was not important or "material" to the issues which it had to determine; or it could be that, although the matter was potentially important, the evidence on it was so skimpy or uncertain that no useful conclusion could be drawn. The Tribunal need not attempt, in its reasons, to deal with every matter which has been covered by evidence before it, or even every matter dealt with in counsel's arguments. The requirement of s 43 is, in my view, that the Tribunal should deal with all the matters which it is bound by relevant legislation to consider, or which it has found persuasive, or which have been urged upon it and would have been persuasive had they been established by the evidence: Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620 at 621.'
Case: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438
Outcome: referred to
The respondent submits that the applicant is intelligent and was competent in the presentation of his claim before the Tribunal, which are factors to be taken into consideration by the Tribunal and the Court: see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438. 41 The further amended supplementary notice of appeal contains five questions of law to be determined by this appeal (see at [33] above). However, I consider that in fact the appeal raises two real issues. The first issue, which corresponds to the second and third question of law, relates to whether the Tribunal erred in determining that the appellant could not have suffered a subclinical compression fracture during his period of army service. 42 The second issue, which corresponds to the first, fourth and fifth question of law, relates to the question whether the Tribunal considered the totality of the evidence, and in particular, whether the Tribunal erred by confining itself to propositions (a), (b) and (c) (reproduced at [9] above). Related to this issue is the submission that the Tribunal unjustifiably narrowed the scope of its inquiry because of the conversation with the applicant at the outset of the hearing. 52 The issue of assistance to be provided to unrepresented litigants was further considered by the Full Federal Court in Minogue v Human Rights and Equal Opportunity Commission . The Court there observed (at [27]): 'In Abram v Bank of New Zealand [1996] ATPR 42340 at 42347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment: "What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case." We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram , the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented ...' 53 The Full Court in Minogue then referred to the decision of Rajski, in which Mahoney JA observed (at 22-3 of his Honour's reasons): 'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.'
Case: Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509
Outcome: applied
It is a well-recognised principle that a tribunal (or a court) has a particular duty towards unrepresented applicants who appear before it. The High Court in Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509 observed at 510 that: 'A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.'
Case: Riordan v Australian Sports Drug Agency [2002] FCA 858 ; (2002) 120 FCR 424
Outcome: considered
In Riordan v Australian Sports Drug Agency [2002] FCA 858 ; (2002) 120 FCR 424, Gray J said at [50]: 'The extent to which the Tribunal is obliged to be proactive is a difficult question. It is possible to have considerable sympathy with the proposition that the Tribunal is obliged only to determine the issues placed before it by the parties. It must be recognised, however, that at least in some circumstances, the Tribunal is obliged to look at issues that are not raised directly. It can only do so, however, if those issues are apparent on the material before it.'
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Outcome: referred to
when faced with a claim such as the present, which centres upon an allegation of long standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (" VTAO ") (at [62]). In doing so it had also to consider each of the "integers" of the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (at 259). An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background.
Case: Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478
Outcome: referred to
when faced with a claim such as the present, which centres upon an allegation of long standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (" VTAO ") (at [62]). In doing so it had also to consider each of the "integers" of the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (at 259). An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background.
Case: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426
Outcome: cited
failure on the part of the Tribunal to consider a claim that is in fact advanced and properly supported by the material before the Tribunal is capable of giving rise to jurisdictional error. It amounts to a constructive failure to exercise jurisdiction: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ (at 242-243) and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 81-83 per Gaudron J. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (at [78]). This has nothing to do with merits review. It is rather a failure on the part of the Tribunal to discharge its statutory duty. Counsel for the Minister conceded as much. In my opinion, the Tribunal constructively failed to exercise jurisdiction in this case.
Case: NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95
Outcome: referred to
it must be remembered that the list does not constitute a definition of "serious harm". That expression plainly has a residual meaning beyond the examples given, though that meaning is informed by those examples. See generally NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95.
Case: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228
Outcome: cited
failure on the part of the Tribunal to consider a claim that is in fact advanced and properly supported by the material before the Tribunal is capable of giving rise to jurisdictional error. It amounts to a constructive failure to exercise jurisdiction: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ (at 242-243) and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 81-83 per Gaudron J. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (at [78]). This has nothing to do with merits review. It is rather a failure on the part of the Tribunal to discharge its statutory duty. Counsel for the Minister conceded as much. In my opinion, the Tribunal constructively failed to exercise jurisdiction in this case.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
failure on the part of the Tribunal to consider a claim that is in fact advanced and properly supported by the material before the Tribunal is capable of giving rise to jurisdictional error. It amounts to a constructive failure to exercise jurisdiction: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30 ; (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ (at 242-243) and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 81-83 per Gaudron J. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (at [78]). This has nothing to do with merits review. It is rather a failure on the part of the Tribunal to discharge its statutory duty. Counsel for the Minister conceded as much. In my opinion, the Tribunal constructively failed to exercise jurisdiction in this case.
Case: SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 
Outcome: referred to
the Tribunal in the present case did not consider whether the husband's claims, considered cumulatively , could amount to "serious harm". Whether those claims in fact rise to that level, bearing in mind that we are dealing with the future, and not the past, is a matter for the Tribunal, and not for this Court. See SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 per Jacobson J (at [19]). Given that the point is arguable, I consider that the matter should be remitted to the Tribunal to be determined according to law. It follows for the reasons set out above that the appeal should be allowed. The orders of the Federal Magistrate dismissing the application for review, and ordering the appellants to pay costs, should be set aside. In lieu thereof, a writ of certiorari should issue directed to the Tribunal, quashing its decision. A writ of mandamus should also issue directing that the matter be heard and determined according to law. The appellants should have their costs, if any, of the proceeding before the Federal Magistrates Court. They are entitled also to have their costs, if any, of the appeal to this Court. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 18 August 2006 The First Appellant appeared in person on behalf of all Appellants Counsel for the First Respondent: Mr R Knowles Solicitors for the First Respondent: Clayton Utz Date of Hearing: 2 May 2006 Date of Judgment: 18 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1095.html
Case: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332
Outcome: discussed
when faced with a claim such as the present, which centres upon an allegation of long standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (" VTAO ") (at [62]). In doing so it had also to consider each of the "integers" of the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (at 259). An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background. It is possible that individual instances of discrimination will not of themselves amount to "serious harm", but when considered cumulatively satisfy the requirements of s 91R. See, for example, VTAO , where Merkel J took a similar approach. In that case his Honour found, just as I have done, that the Tribunal's failure to consider a series of claims cumulatively gave rise to a constructive failure to exercise jurisdiction.
Case: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: referred to
The Tribunal is not required to conduct the proceedings as if they were a Court hearing: see SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at 425 per Gleeson CJ, delivering the decision of the High Court of Australia said: The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant's claims in a process of administrative merits review of the delegate's decision. For similar observations see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [52] .
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
The Tribunal did not accept that the appellant did not know of the interview on 7 May 2003 between Australian Embassy officials in Beijing and the appellant's wife. Lloyd-Jones FM noted the evidence upon which the Tribunal could reach such conclusion, which included the sponsorship of the wife and child by the appellant. Contrary to the claim of the appellant, there was sufficient factual circumstances to warrant the inference by the Tribunal in making such finding: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33] - [35] . Further, the Court accepts the submissions of the Minister that such finding does not bear on the Tribunal's conclusion that the appellant's political activities in Australia were not bona fide.
Case: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141
Outcome: referred to
The Tribunal did not accept that the appellant did not know of the interview on 7 May 2003 between Australian Embassy officials in Beijing and the appellant's wife. Lloyd-Jones FM noted the evidence upon which the Tribunal could reach such conclusion, which included the sponsorship of the wife and child by the appellant. Contrary to the claim of the appellant, there was sufficient factual circumstances to warrant the inference by the Tribunal in making such finding: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33] - [35] . Further, the Court accepts the submissions of the Minister that such finding does not bear on the Tribunal's conclusion that the appellant's political activities in Australia were not bona fide.
Case: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222
Outcome: referred to
The Tribunal did not accept that the appellant did not know of the interview on 7 May 2003 between Australian Embassy officials in Beijing and the appellant's wife. Lloyd-Jones FM noted the evidence upon which the Tribunal could reach such conclusion, which included the sponsorship of the wife and child by the appellant. Contrary to the claim of the appellant, there was sufficient factual circumstances to warrant the inference by the Tribunal in making such finding: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33] - [35] . Further, the Court accepts the submissions of the Minister that such finding does not bear on the Tribunal's conclusion that the appellant's political activities in Australia were not bona fide.
Case: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536
Outcome: followed
The Tribunal found that the appellant engaged in the conduct for the purpose of strengthening his claim to be a refugee. As such, s 91R(3) of the Act applies and the Tribunal was entitled, having made such findings of fact, to determine that the conduct was not bona fide. The factual findings of the Tribunal thus operate to exclude the hypothesis proposed by the appellant. Further, s 91R(3) of the Act creates a reversal of onus of proof, which the appellant did not discharge: see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 at [26] which was approved in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [39] .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Outcome: referred to
The Tribunal is not required to conduct the proceedings as if they were a Court hearing: see SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at 425 per Gleeson CJ, delivering the decision of the High Court of Australia said: The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant's claims in a process of administrative merits review of the delegate's decision. For similar observations see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [52] .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128
Outcome: referred to
The Tribunal is not required to conduct the proceedings as if they were a Court hearing: see SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at 425 per Gleeson CJ, delivering the decision of the High Court of Australia said: The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant's claims in a process of administrative merits review of the delegate's decision. For similar observations see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [52] .
Case: SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 ; (2002) 124 FCR 182
Outcome: referred to
The process by which the Tribunal reached its conclusions was the same as that considered by Mansfield J in SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 ; (2002) 124 FCR 182 at [52] - [57] which was later upheld on appeal: see SAAS of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 340 at [15] . The Court can find no error in the findings of Lloyd- Jones FM.