mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wyse v Minister for Immigration and Citizenship [2006] FMCA 1362
Outcome: distinguished
At the hearing the appellant was represented by Mr Nguyen of Counsel. A summary of the appellant's submissions are as follows: Ground 1 &#8226; By not giving the appellant the opportunity to respond to adverse findings in relation to property valuations, the Tribunal failed to comply with the requirements in s 359A(1)(c) of the Act. &#8226; By not placing due weight on the appellant's assets, the overall points score was affected which lead to the Tribunal affirming the decision of the delegate. Ground 2 &#8226; The Tribunal failed to properly consider the evidence as to the appellant's English ability. The Tribunal accepted that the appellant achieved two Advanced Diplomas but did not award the appellant 30 points for achieving "better than functional English" as provided for in policy. The fact that the appellant exercised his right to use an interpreter at the hearing was an irrelevant consideration. &#8226; The real estate valuations of the appellant were given no weight by the Tribunal and not taken into account. The Tribunal divided the value of the 93-95 Nguyen Cu Trinh Street property in half without giving any reasons. If the property were not divided in half, the appellant would have received 15 points under the Schedule to the Act. The appellant was not given the opportunity to provide further evidence or comment on the real estate valuations. The decision of the Tribunal is contrary to the authority in Wyse v Minister for Immigration and Citizenship [2006] FMCA 1362. Ground 3 &#8226; The Tribunal failed to recognise that the two Diplomas of the appellant were evidence of "better than functional English". By commenting on the appellant's failure to take an IELTS test, the Tribunal made a preference as to the type of evidence it would accept and imposed a requirement that an IELTS test be completed. Ground 4 &#8226; The Tribunal made an error of fact that led it to misapply the law. The Tribunal concluded the appellant completed Advanced Diplomas on a part-time basis and the instructions were in Vietnamese. In fact the courses were completed on a full-time basis and instructions were in English. The factual errors led the Tribunal to conclude the appellant had "functional English". 39 Further, I agree with Ms Wheatley that the principles articulated in Wyse [2006] FMCA 1362 have no application in the context of these proceedings, as that case involved a different type of visa, a different policy and different requirements. 40 I do not consider this ground of appeal substantiated.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The Federal Magistrate approached his task mindful of the injunction against excessive zealotry in finding error in the language and expression of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 277 and 291. Having referred to the Tribunal's inconsistencies comment, his Honour stated that the Tribunal's reasons clearly indicated that it was aware of the claims made in the visa application statement and that it had sought to address and test the claims in that statement in its questioning of the appellant at the hearing. Indeed the Federal Magistrate went so far (in [31] of his reasons) to indicate that in his view "the written statement provided the foundation for the Tribunal's questioning of the applicant throughout the hearing". Further, the reasons expressly acknowledged that it had considered the factual claims of the statement.
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
As is well understood, even though this proposed new ground was not raised before the Federal Magistrate, the Court may allow such a ground to be agitated on an appeal if satisfied that it is expedient in the interests of justice to allow that course to be taken: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168. Whether or not leave should be granted in this case will turn largely on the prospects of success of the proposed amended ground. For this reason, as I indicated at the hearing, I have heard argument both on the substantive ground and on the application to amend.
Case: SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
Outcome: cited
The manner in which the appellant's counsel has argued the matter has been somewhat unusual. He has conceded that in confirming the details of his protection visa application at the Tribunal hearing, the appellant thereby gave the information in the visa application statement "for the purpose of the application" to the Tribunal: cf s 424A(3)(b). It is not for me to consider whether this concession needed to be, or was properly, made: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [29] ff. It was then said that the inconsistencies between the statement and the oral evidence were not required to be notified under s 424A of the Migration Act either because of s 424A(3)(b) or, in my view, more properly because inconsistencies in evidence given by an applicant are not "information" for the purposes of s 424A: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] .
Case: SZILQ v Minister for Immigration and Citizenship [2007] FCA 942
Outcome: cited
If, in the circumstances, the Tribunal was under an obligation to put the inconsistent statements to the appellant for comment, that obligation could only have arisen if, and to the extent that, s 425 of the Act so dictated in the circumstances. It prescribed the opportunity that was to be given in circumstances such as the present to an applicant at a Tribunal hearing by way of "the natural justice hearing rule" beyond what was required by s 424A: cf SZILQ v Minister for Immigration and Citizenship [2007] FCA 942.
Case: MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167
Outcome: cited
As I have noted, her Honour held that the Tribunal's finding that it was reasonable for the appellant to relocate within India was made independently of the accepted failure to comply with s 424A(1) of the Act. The appellant was specifically asked whether he directed any ground of appeal to the finding on relocation or the consequences of that independent finding in light of the failure to comply with s 424A(1). The only matter that he raised was a question of fact as to the difficulties for him in relocating. Consistent with MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7] ; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZEEU at [233], I see no error in her Honour's approach.
Case: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Outcome: cited
As I have noted, her Honour held that the Tribunal's finding that it was reasonable for the appellant to relocate within India was made independently of the accepted failure to comply with s 424A(1) of the Act. The appellant was specifically asked whether he directed any ground of appeal to the finding on relocation or the consequences of that independent finding in light of the failure to comply with s 424A(1). The only matter that he raised was a question of fact as to the difficulties for him in relocating. Consistent with MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7] ; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZEEU at [233], I see no error in her Honour's approach.
Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: referred to
claim for public interest immunity protects from disclosure documents of which the disclosure would be prejudicial or injurious to the public interest: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 48-9. Consequently, it is necessary to balance two competing aspects of the public interest, namely the effect upon the administration of justice if the evidence is withheld on the one hand, and the effect upon the wider public interest if the documents are made available for inspection: see generally Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404 at 412. It is inappropriate, in my view, simply to take the view that because a document relates to an investigation of criminal conduct, its disclosure would necessarily have a significant adverse consequence to that investigation and so should not be disclosed. It is necessary to consider the particular circumstances of the proceedings and of the documents which are sought to be investigated. It is also necessary to bear in mind, in a matter such as the present, that there is no real public interest in not exposing any illegal conduct on the part of the authorities. That is not to suggest that such conduct is or may be established in this matter, but that is the allegation. I have also borne in mind the intention of the Parliament as evidenced in the ACC Act, in particular ss 29 and 30 and 51(3).
Case: Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404
Outcome: referred to
claim for public interest immunity protects from disclosure documents of which the disclosure would be prejudicial or injurious to the public interest: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 48-9. Consequently, it is necessary to balance two competing aspects of the public interest, namely the effect upon the administration of justice if the evidence is withheld on the one hand, and the effect upon the wider public interest if the documents are made available for inspection: see generally Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404 at 412. It is inappropriate, in my view, simply to take the view that because a document relates to an investigation of criminal conduct, its disclosure would necessarily have a significant adverse consequence to that investigation and so should not be disclosed. It is necessary to consider the particular circumstances of the proceedings and of the documents which are sought to be investigated. It is also necessary to bear in mind, in a matter such as the present, that there is no real public interest in not exposing any illegal conduct on the part of the authorities. That is not to suggest that such conduct is or may be established in this matter, but that is the allegation. I have also borne in mind the intention of the Parliament as evidenced in the ACC Act, in particular ss 29 and 30 and 51(3).
Case: Beadle v Director-General of Social Security [1984] AATA 176 ; (1985) 60 ALR 225
Outcome: cited
in time, a Full Court had observed in Beadle v Director-General of Social Security [1984] AATA 176 ; (1985) 60 ALR 225 at 228 that: We do not think it is possible to lay down precise limits or precise rules ... The phrase, although lacking precision, is sufficiently understood not to require judicial gloss. I refrain, in this case, from adding any judicial gloss in respect of the term "special circumstances". It seems to me that that which has earlier fallen from courts as to what those words carry with them is more than sufficient. When one reads the reasons of the learned Federal Magistrate insofar as they address the subject of the special circumstances aspect of the controversy which fell to the AAT to resolve one is left, in my opinion, with two impressions. Firstly, that the learned Federal Magistrate correctly apprehended the nature of the special circumstances test which fell for the AAT to apply, and secondly, that the learned Federal Magistrate did appreciate that that test fell for application in the circumstances of Mr Doelle's particular case. In particular, at para 13 of the reasons for judgment of the Federal Magistrates Court, one finds the following: The facts were considered against the established test with the tribunal concluding, at para 20: "... there is no or insufficient probative evidence that the applicant's circumstance are somehow unusual or exceptional such that there are "special circumstances" enough to warrant the debt being waived." One then finds the following observation made by the learned Federal Magistrate: Despite the contention in his notice of appeal that the AAT incorrectly interpreted and/or applied the meaning of the expression "special circumstances" in section 1184K of the SS Act no particulars were advanced in support of that contention. The Tribunal correctly informed itself of the relevant test and its determination was open to it on the facts of the case. Ultimately the conclusion drawn by the AAT was one of fact.
Case: Boscolo v Secretary, Department of Social Security [1999] FCA 106 ; (1999) 90 FCR 531
Outcome: cited
the nature of that challenge, it is helpful to reflect upon observations which have been made in earlier judgments as to the nature of a special circumstances test. In Boscolo v Secretary, Department of Social Security [1999] FCA 106 ; (1999) 90 FCR 531 at 535, French J, as his Honour then was, observed: It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it is not likely to be enlivened... If helpful to speak in terms of its meaning almost all of it comes from context. I note that the learned Federal Magistrate made particular reference, at para 10 of his reasons for judgment, to Boscolo's case.
Case: Commonwealth Banking Corporation v Percival [1988] FCA 240 ; (1988) 20 FCR 176
Outcome: cited
this regard, it is helpful to recall observations made, now long ago, by Brennan J, as his Honour then was, in Waterford v Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54 at 77, which statement was referred to with approval in this Court in Commonwealth Banking Corporation v Percival [1988] FCA 240 ; (1988) 20 FCR 176: The error of law which an appellant must rely on to succeed must arise in the facts as the AAT has found them to be, or it must vitiate the findings made, or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore, an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
Case: Federal Commissioner of Taxation v Elton (1990) ATC 4078
Outcome: cited
in Federal Commissioner of Taxation v Elton (1990) ATC 4078, Davies J observed that although he might have come to a different view on the facts had he been called upon to make the decision, no error of law was demonstrated. His Honour there, as others have frequently done since in respect of appeals under s 44 , was demonstrating a principle of restraint in terms of the jurisdiction that is consigned to the court in appeals from the AAT. It seems to me that the learned Federal Magistrate did just that in disposing with this aspect of the challenge which Mr Doelle made to the AAT's decision. Thus, those grounds of appeal which seek to challenge the way in which the Federal Magistrates Court dealt with the findings of fact made by the AAT must fail. It is convenient, having regard to the reference to Waterford's case, to make brief reference to an endeavour which Mr Doelle made to supplement the record of the proceedings by proffering a document which I marked for identification as exhibit A. Mr Doelle did not give sworn evidence that this document comprised part of the record before the AAT, and, in a statement which he made from the bar table, was unable to confirm one way or the other whether it was, indeed, part of the material before the AAT. The Commonwealth's position was that it did not comprise part of the material before the AAT. It certainly did not form part of the material which was transmitted to the Court by the AAT, as required, in respect of an appeal under s 44.
Case: Groth v Secretary, Department of Social Security [1995] FCA 1708 ; (1995) 40 ALD 541
Outcome: cited
Groth v Secretary, Department of Social Security [1995] FCA 1708 ; (1995) 40 ALD 541 at 545, Kiefel J observed that: The words require something which distinguishes [a person's] case from others, to take it out of the usual or ordinary case.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
Jess v Scott (1986) 12 FCR 187 at 195, albeit in a different context but, nonetheless, by reference to the term "special circumstances," a Full Court observed of that term that: [It is] an elastic test, suitable for application across a range of situations ... It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify departure in the particular circumstances from the ordinary rule.
Case: Minister for Community Services and Health v Chi Keong Thoo (1988) 78 ALR 307
Outcome: cited
similar view of the meaning of a term such as "special circumstances" is to be found in the judgment of the Full Court in Minister for Community Services and Health v Chi Keong Thoo (1988) 78 ALR 307 at 324.
Case: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: followed
regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 , and subsequent decisions of Full Courts of this Court, there can be no doubt that an appeal to this Court from the Federal Magistrates Court is an appeal by way of rehearing, not an appeal stricto sensu . That said, the nature of the appellate jurisdiction is necessarily influenced by the nature of the proceeding which is the subject of appeal. In this instance, that proceeding was an appeal on a question of law. It seems to me to follow, having regard to the observation made by Brennan J in Waterford's case, that it would be impermissible, on an appeal from the Federal Magistrates Court which had entertained an appeal under s 44 of the Administrative Appeals Tribunal Act , to receive, by way of an endeavour to supplement the record, material which could only go to a challenge to the factual conclusion reached by the AAT. For those reasons, I have not had regard to exhibit A in the disposition of the appeal. I turn, then, to the question which necessarily confronted the learned Federal Magistrate, in light of the conclusion which he had reached concerning the ability, reasonably, of the AAT to make the finding of fact that it did in relation to the composition of the settlement moneys. His Honour correctly apprehended that s 1184K of the Social Security Act makes provision for the exercise of discretion in relation to the imposition of the lump sum preclusion period refund obligations, where "special circumstances" exist. It seems to me, also, that his Honour correctly apprehended the case law, such as it is, as to the meaning of that term "special circumstances." One finds in para 8 and para 10 of the learned Federal Magistrate's reasons reference to pertinent authorities. His Honour recites, at para 9 of his reasons for judgment, that no issue was taken with the AAT's identification of the appropriate test. Before me, Mr Doelle was concerned that the learned Federal Magistrate had not dealt with the special circumstances test correctly, in that, so he submitted, the court below had failed to appreciate that the ramification of the special circumstances test was that each case is different. In other words, the nature of the challenge seemed to be that the court below and, for that matter, the AAT, had failed to appreciate that it was at the very essence of the special circumstances test that it required the consideration of its application in the circumstances of a particular case.
Case: Secretary Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32
Outcome: cited
cautionary note was sounded by Hill J in Secretary Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32 at 42 in his Honour's observation that the term carried with it: ...no requirement that the case be extremely unusual, uncommon or exceptional. [emphasis added]
Case: Waterford v Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: applied
this regard, it is helpful to recall observations made, now long ago, by Brennan J, as his Honour then was, in Waterford v Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54 at 77, which statement was referred to with approval in this Court in Commonwealth Banking Corporation v Percival [1988] FCA 240 ; (1988) 20 FCR 176: The error of law which an appellant must rely on to succeed must arise in the facts as the AAT has found them to be, or it must vitiate the findings made, or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore, an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
Case: Hamod v New South Wales (2002) 188 ALR 659
Outcome: cited
Ordinarily, costs are ordered on a party/party basis, and it is only if a case is "special" or out of the ordinary that indemnity costs may properly be ordered. In Hamod v New South Wales (2002) 188 ALR 659, Gray J (with whom the other members of the Full Court agreed) stated (at [20]) that indemnity costs served the purpose of compensating a party fully for costs incurred where the Court is of the view that it was "unreasonable for the party against whom the order is made to have subjected the innocent party to the exposure of costs". 5 The Administrators submit that it was unreasonable for the DCT to have subjected them to the cost of a five day hearing and to have persisted to the end in a wide ranging attack on the conduct, and, consequently, the professional standing, of Mr Hamilton, when: &#8226; as early as in the Report (dated 25 January 2006) and the Supplementary Report (dated 8 February 2006), Mr Hamilton explained that any question of any recoveries by a liquidator for the benefit of unsecured creditors was very doubtful; &#8226; any attempt to recover monies from third parties would require the funding of investigations, public examinations and recovery proceedings; &#8226; I was disposed not to set aside the DOCA primarily because of the absence of evidence or an undertaking to the Court by the DCT that she would fund investigations and public examinations, and, if recommended, recovery proceedings; &#8226; in these circumstances a winding up would serve no useful purpose (see earlier Reasons at [261]). 6 In the earlier Reasons (at [172] [190]) I accepted the Administrators' submission that the DOCA terminated on 21 June 2006. The Administrators submit that the DCT was put on notice of their contention that the DOCA had so terminated on or about 28 June 2006, yet persisted with the proceedings even though, according to their submission, a winding up application by the DCT was bound to fail because upon the termination of the DOCA the DCT had lost the status of a creditor of Wellnora (see s 459P(1)(b) of the Act).
Case: NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480 ; (2000) 109 FCR 77
Outcome: cited
The Administrators have made helpful written submissions in support of their application for indemnity costs. There is no dispute in relation to the governing principles. The categories of case in which the discretion to award costs on the indemnity basis may be properly exercised are not closed, and an order is not compelled by the mere fact that the circumstances fit within a literal description that has been given of the features of an earlier case in which indemnity costs were ordered: NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480 ; (2000) 109 FCR 77 at 92 [53] .