mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cohen [2001] HCA 10 , 177 ALR 473
Outcome: considered
The Respondent Minister opposes the grant of relief. He seeks to define, and confine, the " issues " to be addressed for the purposes of s 425(1) as those defined by the delegate's decision initially refusing to grant the protection visa and thereafter to rely on the adverse findings of credit as made by the reconstituted Tribunal. That Tribunal, it is submitted by the Minister, made its own findings of fact which were open to it and, if there be any error, such errors it is submitted are errors of fact which normally do not give rise to jurisdictional error: SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747 at [26] , [29]; VWFP and VWFQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 231 at [77] . See also: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 per Brennan J; Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [36] , [2001] HCA 10 ; 177 ALR 473 per McHugh J.
Case: SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 231 , 77 ALD 402
Outcome: followed
But what does matter is whether such an error, when it does occur, can be characterised as a jurisdictional error. In the present circumstances it is considered that it can. In SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 231 , 77 ALD 402 Mansfield, Selway and Bennett JJ observed: [19] ... If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error ... And, in SZDTZ v Minister for Immigration &amp; Citizenship [2007] FCA 1824 Greenwood J reviewed some of the authorities (including SFGB ) and concluded: [31] The central matter is this. [32] A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
Case: SZDTZ v Minister for Immigration &amp; Citizenship [2007] FCA 1824
Outcome: followed
But what does matter is whether such an error, when it does occur, can be characterised as a jurisdictional error. In the present circumstances it is considered that it can. In SFGB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 231 , 77 ALD 402 Mansfield, Selway and Bennett JJ observed: [19] ... If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error ... And, in SZDTZ v Minister for Immigration &amp; Citizenship [2007] FCA 1824 Greenwood J reviewed some of the authorities (including SFGB ) and concluded: [31] The central matter is this. [32] A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
Case: SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747
Outcome: followed
The Respondent Minister opposes the grant of relief. He seeks to define, and confine, the " issues " to be addressed for the purposes of s 425(1) as those defined by the delegate's decision initially refusing to grant the protection visa and thereafter to rely on the adverse findings of credit as made by the reconstituted Tribunal. That Tribunal, it is submitted by the Minister, made its own findings of fact which were open to it and, if there be any error, such errors it is submitted are errors of fact which normally do not give rise to jurisdictional error: SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747 at [26] , [29]; VWFP and VWFQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 231 at [77] . See also: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 per Brennan J; Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [36] , [2001] HCA 10 ; 177 ALR 473 per McHugh J.
Case: SZJKU v Minister for Immigration &amp; Citizenship [2008] FCA 308
Outcome: followed
First, it is not considered that " the issues arising in relation to the decision under review " are to be defined in all cases by the decision of the delegate. Their Honours in SZBEL did observe: ... But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review".... The issues which a delegate considers dispositive of the application may well be the issues which an applicant has to confront and answer when an appeal is lodged with the tribunal, eg SZJKU v Minister for Immigration &amp; Citizenship [2008] FCA 308 at [37] [45] per Emmett J. But the object of s 425 is to ensure that an applicant is given an opportunity " to give evidence and present arguments ", being evidence and argument " relating to the issues arising in relation to the decision under review ". And that is an obligation imposed upon the tribunal hearing the application before it, whether it be the tribunal initially hearing the application or any subsequent tribunal.
Case: VWFP and VWFQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 231
Outcome: followed
The Respondent Minister opposes the grant of relief. He seeks to define, and confine, the " issues " to be addressed for the purposes of s 425(1) as those defined by the delegate's decision initially refusing to grant the protection visa and thereafter to rely on the adverse findings of credit as made by the reconstituted Tribunal. That Tribunal, it is submitted by the Minister, made its own findings of fact which were open to it and, if there be any error, such errors it is submitted are errors of fact which normally do not give rise to jurisdictional error: SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747 at [26] , [29]; VWFP and VWFQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 231 at [77] . See also: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 per Brennan J; Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [36] , [2001] HCA 10 ; 177 ALR 473 per McHugh J.
Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: considered
The Respondent Minister opposes the grant of relief. He seeks to define, and confine, the " issues " to be addressed for the purposes of s 425(1) as those defined by the delegate's decision initially refusing to grant the protection visa and thereafter to rely on the adverse findings of credit as made by the reconstituted Tribunal. That Tribunal, it is submitted by the Minister, made its own findings of fact which were open to it and, if there be any error, such errors it is submitted are errors of fact which normally do not give rise to jurisdictional error: SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747 at [26] , [29]; VWFP and VWFQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 231 at [77] . See also: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 per Brennan J; Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [36] , [2001] HCA 10 ; 177 ALR 473 per McHugh J.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: cited
The Federal Magistrate held that the choice of country information was a matter for the RRT, and could not give rise to jurisdictional error. His Honour referred to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 where the Full Court stated (at [11]): "It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that."
Case: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
Outcome: referred to
In relation to the ground regarding s 424A , the Federal Magistrate noted that a letter which he regarded as having satisfied the requirements of that section had been sent to the appellant by the RRT on 24 January 2000. He concluded that the fact that the s 424A letter had been sent by the RRT at the time of the first hearing, rather than at the time of the second hearing, was of no consequence. He observed that the letter had been sent to the appellant as part of the process leading up to the RRT's earlier decision, which was subsequently set aside, but that this did not affect its significance. He referred to SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [37] [44]; and SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [16] [17].
Case: SZJBE v Minister for Immigration and Citizenship [2007] FCA 190
Outcome: referred to
In relation to the ground regarding s 424A , the Federal Magistrate noted that a letter which he regarded as having satisfied the requirements of that section had been sent to the appellant by the RRT on 24 January 2000. He concluded that the fact that the s 424A letter had been sent by the RRT at the time of the first hearing, rather than at the time of the second hearing, was of no consequence. He observed that the letter had been sent to the appellant as part of the process leading up to the RRT's earlier decision, which was subsequently set aside, but that this did not affect its significance. He referred to SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [37] [44]; and SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [16] [17].
Case: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291
Outcome: cited
His Honour further noted that in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291 the Full Court held (at [41]): "In any event, the choice of country information available was a matter for the Tribunal. The Tribunal was not required by law to accept more recent information even if it had been supplied. Such information might for example have come from a less reliable source than the old information. There was in the circumstances no obligation on the Tribunal to make enquiries: see VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25] . " 13 His Honour went on to state that it was plain that the RRT had not ignored the later country information because it had referred to that information in terms in its reasons for decision. The country information in question related to the position in 2004, while the earlier information went back to 1998 and 2001. His Honour concluded that the appropriate inference was simply that the RRT preferred the earlier country information to the later information. In his Honour's opinion, that was a matter for the RRT. The Court could not substitute its own view of the weight that should be accorded to this material for that of the RRT.
Case: Grant v John Grant [1950] HCA 54 ; (1950) 82 CLR 1
Outcome: referred to
Counsel for Rosalind seek an order under s 175(1) of the Corporations Act 2001 (Cth) correcting the share register of the relevant companies to reflect her entitlement to shareholdings in them. Rosalind has standing to apply for such an order as "a person aggrieved", given that her interests are not correctly stated in the current share register. It is appropriate and just in this case to order a correction of the register. Rosalind has established an equity to be recorded on the Dalness Pty Ltd share register by virtue of the Deeds of Appointment made by Donald on 3 December 1986: see, Grant v John Grant [1950] HCA 54 ; (1950) 82 CLR 1. In relation to Rocklands Pty Ltd, the Family Rearrangement entered into in 1988 gave Rosalind a right to be registered as the owner of one A class share immediately and the B class share upon payment. Payment was eventually made by July 2005. Under s 175(3) the notice of correction must be lodged with ASIC and it is appropriate to so order.
Case: Morgan v 45 Flers Avenue Pty Ltd (1986) 5 ACLC 222
Outcome: referred to
Rosalind's application is also made under s 233 of the Act. Section 233 is found in Pt 2F.1 of the Act and entitled "oppressive conduct of affairs". Section 232 allows the Court to make an order under s 233 if the conduct of the company's affairs or an omission by the company is "oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members....". The failure of the other shareholders in the companies to recognise Rosalind's stake in them has denied her the opportunity to play a part in the functioning of those companies and is in that sense "oppressive": see, Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459; Morgan v 45 Flers Avenue Pty Ltd (1986) 5 ACLC 222. Further, it is evident that the conduct of Neil as a director of both companies has been oppressive where he unfairly used that position to deny Rosalind her right to be registered on account of purported debts owed to his father's estate and the partnership.
Case: Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459 
Outcome: referred to
Rosalind's application is also made under s 233 of the Act. Section 233 is found in Pt 2F.1 of the Act and entitled "oppressive conduct of affairs". Section 232 allows the Court to make an order under s 233 if the conduct of the company's affairs or an omission by the company is "oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members....". The failure of the other shareholders in the companies to recognise Rosalind's stake in them has denied her the opportunity to play a part in the functioning of those companies and is in that sense "oppressive": see, Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459; Morgan v 45 Flers Avenue Pty Ltd (1986) 5 ACLC 222. Further, it is evident that the conduct of Neil as a director of both companies has been oppressive where he unfairly used that position to deny Rosalind her right to be registered on account of purported debts owed to his father's estate and the partnership.
Case: Re Application of Gallagher; Re Federated Cold Storage &amp; Meat Preserving Employees Union of Australia (1983) 6 IR 78
Outcome: referred to
171D was considered by a Full Court of this Court in Re Application of Gallagher; Re Federated Cold Storage &amp; Meat Preserving Employees Union of Australia (1983) 6 IR 78. Smithers J observed (at 81) that: "Considerable novelty may be appropriate in a scheme submitted under s 171D. It would seem that the court should be guided not by any narrow interpretation of s.171D, but should respond to the purpose of that section in the context of the Act ... Section 171D is in the midst of the sections last mentioned and stems from the intention of parliament to revive the effective management and administration of organisations when governing bodies have become defunct or impotent or are unable to function effectively because the rules failed to speak effectively in the relevant current circumstances. Its provisions should therefore be liberally construed." See to like effect per Northrop J at 91 and cf the more cautious approach of Keely J at 100-101. By reason of the events which I have earlier summarised I am satisfied that the Branch has ceased to function effectively. Over the past year it has limped from one internal crisis to the next and the underlying causes of the Branch's dysfunction remain unresolved.
Case: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194
Outcome: cited
forerunner of s 323 is to be found in s 171D of the Conciliation and Arbitration Act 1904 (Cth). This provision was declared to be constitutionally valid by the High Court in Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218, notwithstanding the broad powers which it conferred on the Court.
Case: Wang v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548
Outcome: referred to
I do not consider that the Tribunal's reasons leading to its finding that the applicant fabricated his claim to have been a Falun Gong practitioner from mid 2002 disclose jurisdictional error on its part in the way asserted. It was entitled to test the applicant's knowledge of Master Li's teachings, as relevant to that issue. It does not flow from its reasons, either explicitly or implicitly, that it was prescribing a specific level of doctrinal knowledge as a precondition to the applicant (or anyone) being accepted as a Falun Gong practitioner (cf Wang v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548 at 551-552). I do not therefore need to determine whether such a prescription, especially if based upon the Tribunal's understanding of the particular religion which is not accepted by an applicant or not supported by identified material, might involve jurisdictional error. The applicant did not claim in the course of the hearing that the Tribunal's questions did not relate to Master Li's teachings, and accepted that he did not have a deep level of knowledge of those teachings. His explanation for that was that he had not been practising for a long time.
Case: Mashayekhi v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381
Outcome: cited
In my view, the Tribunal's finding of fact that the applicant had been untruthful, in particular about his claim to have been a Falun Gong practitioner since mid 2002 was reached without jurisdictional error. It was based upon the way the applicant responded to the Tribunal's questions on a number of matters, and upon his own evidence as to the nature of what he claimed to have done as a Falun Gong practitioner until mid 2004 and that he had a 'quite superficial' knowledge of Falun Gong. The foundations for its finding of fact were reasonably open to it. No jurisdictional error is demonstrated by the Tribunal making a finding on credibility reasonably available on the material available: Mashayekhi v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 at 385. 14 The fact of that fabrication of his early involvement with Falun Gong, together with his limited knowledge of Falun Gong (as the applicant himself acknowledged), then lead the Tribunal not to be satisfied that the applicant's involvement in Falun Gong more recently was otherwise than for the purpose of strengthening his claim to be a refugee. Section 91R(3) of the Act directed the Tribunal, in those circumstances, to disregard the applicant's more recent Falun Gong involvement. It followed that the Tribunal was not satisfied of his grounds for seeking a protection visa. It was therefore required by s 65 to affirm the delegate's decision and to refuse the protection visa sought. 15 The second claim of jurisdictional error was based upon apprehended bias. It was initially argued that the Tribunal must reasonably be apprehended to have pre-judged the applicant's claim by assuming that each follower and believer of the Falun Gong would know and understand that level of doctrinal knowledge which the Tribunal expected. Counsel for the applicant in the course of submissions accepted that the contention limited in that way did not really advance the applicant's claim, as, if he did not succeed on the first ground, he could not succeed on the alternative ground. However, the contention was then developed by during to the course of the hearing.
Case: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41
Outcome: cited
In my judgment, the transcript does not indicate circumstances such that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the consideration of the application: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 70-71; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425. The Tribunal's role required it to question the applicant, and entitled it to express doubts about aspects of the applicant's evidence or claims and to invite his comments upon those matters: NADH of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 214 ALR 264 at 269 ( NADH ). The Tribunal went no further than that. It put its concerns to the applicant. It gave him an opportunity to respond. It did not prevent him from responding, or cut off his answers. Its concerns were rational. It does not appear that its manner of questioning was inappropriate.
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
In my judgment, the transcript does not indicate circumstances such that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the consideration of the application: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 70-71; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425. The Tribunal's role required it to question the applicant, and entitled it to express doubts about aspects of the applicant's evidence or claims and to invite his comments upon those matters: NADH of 2001 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 214 ALR 264 at 269 ( NADH ). The Tribunal went no further than that. It put its concerns to the applicant. It gave him an opportunity to respond. It did not prevent him from responding, or cut off his answers. Its concerns were rational. It does not appear that its manner of questioning was inappropriate.