mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Guo v Minister for Immigration &amp; Ethnic Affairs (1996) 64 FCR 151
Outcome: followed
One matter addressed in the Appellant's written Outline of Submissions may give further content to what is intended to be conveyed by the first Ground of Appeal . Those submissions refer to the findings as to inconsistency in the evidence and contend that " the Tribunal did not accept the applicant's involvement with the Telegu Desam party but the Tribunal did not show ... why it did not accept that the applicant's involvement in the party ". In reviewing the approach of the Tribunal to the evidence given by the Appellant, it is of obvious importance to consider the difficult circumstances in which applicants for refugee status are called upon to give an account of their circumstances and to substantiate their claims: Taylor S, Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions (1994) 13 U Tas LR 43. In Guo v Minister for Immigration &amp; Ethnic Affairs (1996) 64 FCR 151 at 194, Foster J has also helpfully given the following reminder: It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected.
Case: Guy v Repatriation Commission [2002] FCA 525
Outcome: considered
Moreover, an administrative tribunal is not normally required to state what evidence is accepted, rejected or taken into account with respect to findings of fact: cf Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617. An administrative tribunal is not required to give a subset of reasons as to why it accepted or rejected individual pieces of evidence: cf Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 at [44] , [2007] FCA 1538 ; 97 ALD 746.
Case: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: considered
Within those constraints, however, the role of making findings of fact is a role entrusted by the legislature to the Refugee Review Tribunal. Clearly enough, in the present proceedings the Tribunal made adverse findings as to the Appellant's lack of credibility and those findings played an important part in its ultimate conclusion. Where, as in the present case, the Tribunal's findings of credibility are open to it on the material, based on rational grounds and arrived at after a consideration of matters that are logically probative of the issues of credibility, those findings of the Tribunal are findings for the Tribunal alone and not this Court: cf Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559. Such findings are findings of fact falling far short of jurisdictional error: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Outcome: followed
Within those constraints, however, the role of making findings of fact is a role entrusted by the legislature to the Refugee Review Tribunal. Clearly enough, in the present proceedings the Tribunal made adverse findings as to the Appellant's lack of credibility and those findings played an important part in its ultimate conclusion. Where, as in the present case, the Tribunal's findings of credibility are open to it on the material, based on rational grounds and arrived at after a consideration of matters that are logically probative of the issues of credibility, those findings of the Tribunal are findings for the Tribunal alone and not this Court: cf Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559. Such findings are findings of fact falling far short of jurisdictional error: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J.
Case: SZKSU v Minister for Immigration &amp; Citizenship [2008] FMCA 77
Outcome: cited
On 31 January 2008 the Federal Magistrates Court delivered its reasons for its decision to dismiss the application seeking review of the Tribunal's decision: SZKSU v Minister for Immigration &amp; Citizenship [2008] FMCA 77. 6 The Appellant now appeals to this Court from the decision of the Federal Magistrate. 7 The Grounds of Appeal as set forth in the Notice of Appeal (without alteration) provide as follows: GROUNDS. 1. The Federal Magistrates Court did not consider that the Refugee Review Tribunal (the Tribunal) did not assess the applicant's claim properly. The Federal Magistrate Court mentioned in para 59 that.'Merely because the Tribunal was not convinced to accept the applicant's claims.' 2. The Federal Magistrates Court did not consider that the Tribunal made a jurisdictional error when it did not accept the applicant's claim and evidences when the Tribunal asked the applicant some questions which confused him 3. The Federal Magistrates Court did not consider that the Tribunal made a procedural mistake when it did not explain to the applicant the reasons for two hearings and why some questions need to be repeated at the second hearing
Case: Byron Environment Centre Inc v Arakwal People (1997) 148 ALR 46
Outcome: cited
On its merits the motion for review must fail. There is no basis upon which I could be satisfied that a determination over a Torres Strait regional sea claim area may affect any interest of Pastor Dorogori. In so concluding I have regard to the principles for the identification of relevant interests in Byron Environment Centre Inc v Arakwal People (1997) 148 ALR 46 and various cases in which that case has been followed. A relevant interest, as was said in Arakwal 148 ALR 46, must be (at 51): ... capable of clear definition and, equally importantly, ... of such a character that they may be affected in a demonstrable way by a determination in relation to the application. 19 I took account of all the material relied upon by Pastor Dorogori. He asserts in reliance upon that material: 1. That he has a link to the claim area. 2. That he and the people he represents have a history in the Torres Strait claim area. 3. That he is the owner of reefs, seas and waters in the claim area. The assertion of ownership of reefs, seas and waters is no more than that. No historical basis for such a claim is disclosed. The location of areas allegedly owned by Mr Dorogori and his people is not disclosed. The fact that he may be descended from people who came from an island in the Torres Strait does not, of itself, support the inference that there is some kind of interest which may be affected by a determination. 20 In my opinion the motion should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 7 December 2007 Counsel for the Applicant: Mr R Blowes SC Solicitor for the Applicant: David Saylor, Torres Strait Regional Authority Pastor G Dorogori appeared in person Counsel for the Commonwealth: Ms R Webb QC Solicitor for the Commonwealth: Counsel for the State of Queensland: Solicitor for the State of Queensland: Counsel for various commercial fishing parties: Solicitor for the various commercial fishing parties: Counsel for Mr P Gamogab: Solicitor for Mr P Gamogab Counsel for Mr PN Sawabarri: Solicitor for Mr PN Sawabarri: Australian Government Solicitor Mr G Hiley QC State Government Solicitor Mr P Gore Gore &amp; Associates Mr T Fisher Fisher Dore Mr D Kempton David Kempton Mr Songoro appeared for the Songoro family Mr Gamia appeared for the Gamia family Mr F Warapa appeared in person and for the Buzi and Ber villages Mr R Gibuma appeared in person and for Sigabaduru Village Mr G Neate appeared for the National Native Title Tribunal Date of Hearing: 16 November 2007 Date of Judgment: 7 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1940.html
Case: Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].
Case: Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321
Outcome: cited
The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27 , HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought. 13 Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].
Case: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 
Outcome: cited
Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].
Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Outcome: cited
The suggestion that the Tribunal failed to afford Mrs Brown procedural fairness in respect of its decision that the kind of death met by Mr Brown was non-Hodgkin's lymphoma is fully met by the above extracts from the hearing transcript. An administrative tribunal such as the AAT is not obliged to accept a submission put to it jointly by the parties to a dispute. The duty of the AAT is to make the correct or preferable decision in the circumstances ( Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). 36 The above extracts from the Tribunal hearing reveal that the Tribunal let the parties know the approach that it proposed to take, and gave them an opportunity to be heard on whether it should find that the kind of death met by Mr Brown was pneumonia. The Tribunal could hardly have made it plainer that, if it concluded that pneumonia was simply a terminating event in Mr Brown's death, it was unlikely to find that he met a 'pneumonia kind of death'. The respondent's representative showed his appreciation of the approach foreshadowed by the Tribunal in the statement reproduced in [34(c)] above. 37 Mrs Brown was not denied procedural fairness by the Tribunal in the way alleged in paragraph 2.3 of the amended notice of appeal or at all.
Case: HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34
Outcome: referred to
The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27 , HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought.
Case: Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38
Outcome: cited
The limited nature of an appeal on a question of law has recently been considered by the Full Court in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321, Comcare v Etheridge [2006] FCAFC 27 , HBF Health Fund Inc v Minister for Health and Ageing [2006] FCAFC 34 and Purvis v Dairy Adjustment Authority (No 2) [2006] FCAFC 38. It is not necessary to repeat here everything said in those cases. It is sufficient to observe that they make clear that the subject matter of an appeal under s 44(1) of the AAT Act is the question (or questions) of law stated in the notice of appeal. The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought. 13 Sitting alone I am bound by the majority decision of the Full Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 that a complaint of denial of procedural fairness may be raised on an appeal under s 44(1) of the AAT Act. However, it seems to me, as I have previously sought respectfully to suggest, that the majority judgment in Clements wrongly equates an error of law with a question of law (see, for example, Birdseye at [18]; Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [46] ; Etheridge at [13]-[17])). This is the view that was taken by Gyles J, the minority judge in Clements at [58]-[67]. See also Purvis esp at [7].
Case: Repatriation Commission v Hancock (2003) 37 AAR 383
Outcome: referred to
The Court has not yet sought to provide definitive guidance on the meaning of 'kind of death' in s 120A although the concept has been considered in Repatriation Commission v Hancock (2003) 37 AAR 383 and Repatriation Commission v Towns (2003) 38 AAR 77. This is not an occasion for the provision of that definitive guidance.
Case: Repatriation Commission v Towns (2003) 38 AAR 77 
Outcome: referred to
The Court has not yet sought to provide definitive guidance on the meaning of 'kind of death' in s 120A although the concept has been considered in Repatriation Commission v Hancock (2003) 37 AAR 383 and Repatriation Commission v Towns (2003) 38 AAR 77. This is not an occasion for the provision of that definitive guidance.
Case: Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588
Outcome: cited
His Honour observed that the High Court had revisited the question whether the approach taken in Jolliffe correctly stated the law on at least two occasions. In Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588 Gaudron, McHugh, Gummow and Hayne JJ said (at [33]). "In Kauter v Hilton , the Court treated Jolliffe as deciding, for the purposes of the legislation there in question, that "[a]ll the relevant circumstances must be examined in order to determine whether the depositor really intended to create a trust"." (Footnote omitted.)
Case: B &amp; M Property Enterprises Pty Ltd (in liq) v Pettingill [2001] SASC 75
Outcome: discussed
In B &amp; M Property Enterprises Pty Ltd (in liq) v Pettingill [2001] SASC 75 , Perry J said (at [122] [126]): "I add that I have at times been concerned at the application of the parol evidence rule, which it might be thought would operate to exclude evidence of an intention on the part of B &amp; M inconsistent with the contents of the declaration of trust. However, Starr v Starr is authority for the proposition that parol evidence is admissible in a case such as this, to show that the declaration was never intended to operate as a binding declaration of trust. In Starr , the defendant was said to have constituted himself a trustee for each of his three infant daughters of moneys standing to his credit in accounts with a savings bank. The written declaration signed by him at the time of the opening of the accounts declared that the money would be the exclusive property of his daughters. But the evidence made it clear that the defendant had always treated the moneys as his own, and did not have any intention of disposing of the beneficial interest in them. In those circumstances, Napier J, relying on Commissioner of Stamp Duties (Qd) v Jolliffe , held that, notwithstanding the terms of the written instrument said to constitute a trust, evidence was admissible to show that the document was never intended to operate as a binding declaration of trust. Likewise, I am satisfied that evidence was properly admitted in this case which demonstrates that B &amp; M never intended the so-called declaration of trust to take effect immediately to vest the beneficial interest in the subject property in Mr Scott Pettingill." (Footnotes omitted.) 72 Dr Glover also submitted that both Starr v Starr and B &amp; M were wrongly decided. I reject that submission. I cannot see how the parol evidence rule can apply, with full rigour, in circumstances where the actual state of mind of the declarant must be ascertained. If the submission were correct, it would lead to peculiar outcomes. For example, evidence could not be received of a contemporaneous oral statement by a declarant that, despite the use of the term "declaration of trust" in a document then executed, no such trust was actually intended. That would be contrary to what the majority in Jolliffe identified as the task to be undertaken in determining whether a declaration of trust had been made.
Case: Baker v Official Trustee in Bankruptcy , Federal Court of Australia, unreported, 3 August 1995 per Burchett, Ryan and Carr JJ
Outcome: cited
Dr Glover submitted, albeit only formally, that the majority judgment in Jolliffe did not state the law correctly, and that the dissenting judgment of Isaacs J should be preferred. He acknowledged, however, that the majority judgment was binding upon me. That is obviously so, particularly since Jolliffe has been cited without disapproval in later High Court decisions. It has also been applied by the Full Court of this Court. See, for example, Baker v Official Trustee in Bankruptcy , Federal Court of Australia, unreported, 3 August 1995 per Burchett, Ryan and Carr JJ; and Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422.
Case: Bank of Australasia v Palmer [1897] AC 540
Outcome: cited
It should be noted that most judicial statements of the parol evidence rule are concerned with its application to contracts. See, eg, Bank of Australasia v Palmer [1897] AC 540 at 545. Plainly, the test for intention in the law of contract is objective, and not subjective. In such circumstances, one can readily understand the difficulty in seeking to lead evidence of the subjective intent of the parties, (unless one enters into the realm of sham). Jolliffe establishes that the test for intention in relation to a declaration of trust is subjective. In principle, therefore, the parol evidence rule would not be expected to operate to exclude evidence which bears upon the actual intent of the declarant at the time of the purported declaration of trust.
Case: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172
Outcome: cited
It is clear that s 27 enables the Court to receive further evidence even though the more stringent common law requirements which apply in relation to fresh evidence have not been satisfied: Cottrell v Wilcox [2002] FCAFC 53 at [20] citing CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 184 186 per Gaudron J, 199 201 per McHugh, Gummow and Callinan JJ and 230 238 per Kirby J. Nonetheless, some factors regarded as relevant to the reception of fresh evidence are also relevant when considering whether to receive further evidence. In particular, the Court will have regard to the cogency of the further evidence, and the chances that it would have led to a different result if tendered at the trial.
Case: Cottrell v Wilcox [2002] FCAFC 53
Outcome: cited
It is clear that s 27 enables the Court to receive further evidence even though the more stringent common law requirements which apply in relation to fresh evidence have not been satisfied: Cottrell v Wilcox [2002] FCAFC 53 at [20] citing CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 184 186 per Gaudron J, 199 201 per McHugh, Gummow and Callinan JJ and 230 238 per Kirby J. Nonetheless, some factors regarded as relevant to the reception of fresh evidence are also relevant when considering whether to receive further evidence. In particular, the Court will have regard to the cogency of the further evidence, and the chances that it would have led to a different result if tendered at the trial.