mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Repatriation Commission v Richardson [2001] FCA 1626
Outcome: followed
First, the term " matter " can include new evidence relevant to the manner in which the prior decision was made. Section 31(6)(a) has not been construed, and should not be construed, as precluding an exercise of the power of review where new evidence or other material becomes available which has not previously been considered. And it may not matter that that new material was available even at the time when the Tribunal made its decision. Thus, Sundberg J went on to conclude in Davis as follows: It was also submitted for Mrs Davis that because Professor Cade's report had been received in time for it to be used by the Commission in support of an application for review of the Board's decision by the AAT, it could not found an exercise of the Commission's power to review the Board's decision under s31(6)(a). A variation of this argument was that the Commission, having had a reasonable opportunity to put Professor Cade's report before the AAT, had not done so, and so was not able to use the report to found an exercise of power under s31(6). These assertions were not developed in argument, and in my view they have no substance. If material becomes available after the relevant decision is made, and it affects the payment of a pension, the power in s31(6)(a) is available to the Commission. It is simply irrelevant that it becomes available at a time when the Commission might seek a review by the AAT. The Commission may engage in conduct which disables it from taking a particular course, but in the absence of any such conduct, it can pursue whichever avenue it chooses. The second argument advanced has overtones of estoppel without any factual basis to support the estoppel. Further, in Repatriation Commission v Richardson [2001] FCA 1626 at [15] [18], [2001] FCA 1626 ; 115 FCR 220 Dowsett J concluded that it was open to the Commission pursuant to s 31(6) to have regard to material of which it was ignorant at the time the original decision was made to grant a pension.
Case: W J &amp; F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23 ; (1957) 96 CLR 294
Outcome: followed
First, as a general proposition, adjudication by an administrative tribunal is administrative in character and does not create an issue of estoppel : W J &amp; F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23 ; (1957) 96 CLR 294 at 315. And that general approach has been applied in respect of decisions of the Administrative Appeals Tribunal: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87. Hill J there observed at 97: Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT [1935] HCA 21 ; (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: "only another executive body in an administrative hierarchy". The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT [1963] HCA 41 ; (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be. In relation to the taxation boards of review, Kitto J in W J &amp; F Barnes Pty Ltd v FCT [1957] HCA 23 ; (1957) 96 CLR 294 at 315, said: "The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel." The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279 ; 17 FCR 476 at 480 had no hesitation in saying: "A finding by an administrative tribunal will not give rise to an issue estoppel." Hill J then went on to conclude (at 98) that the decision of the High Court in Administration of the Territory of Papua New Guinea v Daera Guba [1973] PGHCA 1 ; (1973) 130 CLR 353 did not require any contrary conclusion. This decision has since been followed: Lilienthal v Migration Agents Registration Authority [2001] FCA 2 at [20] , 65 ALD 437 at 442 per Katz J.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 
Outcome: cited
Apprehension of bias is founded on the notion that justice should not only be done, but it should also be seen to be done: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 345. The test to be satisfied is "whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision": NADH v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [14] .
Case: Gaio v The Queen [1964] PGHCA 2 ; (1960) 104 CLR 419 
Outcome: cited
While it is accepted that a perfect interpretation is never possible, it is essential that the interpreter serve as an accurate means of communication between the parties: Gaio v The Queen [1964] PGHCA 2 ; (1960) 104 CLR 419 at 433. It is sufficient that the translation is sufficiently accurate so as to convey the idea or concept being communicated: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 511 at [66].
Case: Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 187 ALR 348 
Outcome: cited
The right to give evidence at a hearing exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right; Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 187 ALR 348 at [44] . None of those situations under s 425(2) which exempt the Tribunal from compliance with s 425(1) is present in this case. 20 The first question that must be determined is whether there was a departure from the relevant standard of interpretation. The interpretation before the Tribunal must be so incompetent that it prevents the appellant from giving evidence: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at [38] . Further the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant's case in the Tribunal as well as to the Tribunal's decision: Perera at [45]. Perera was cited with apparent approval by the Full Court in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 at [44] . That passage was itself cited by the Full Court in SCAR at [34].
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 ; [2003] 128 FCR 553 
Outcome: cited
The right pursuant to s 425 is not a merely formal right, but is a right that imposes an objective requirement on the Tribunal to provide a 'real and meaningful' invitation: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 ; [2003] 128 FCR 553 at [37] . Compliance with s 425 of the Act by the Tribunal is a precondition to the valid exercise of its jurisdiction. Failure by the Tribunal to comply with the requirements of s 425 of the Act involves a "jurisdictional error": SCAR at [38]. The statutory obligation upon the Tribunal to provide a "real and meaningful" invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. The Full Court in SCAR at [37] said that: ... it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a "real and meaningful" invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where ...the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate : Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. (Emphasis added) 20 The first question that must be determined is whether there was a departure from the relevant standard of interpretation. The interpretation before the Tribunal must be so incompetent that it prevents the appellant from giving evidence: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at [38] . Further the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant's case in the Tribunal as well as to the Tribunal's decision: Perera at [45]. Perera was cited with apparent approval by the Full Court in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 at [44] . That passage was itself cited by the Full Court in SCAR at [34].
Case: NADH v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 
Outcome: cited
Apprehension of bias is founded on the notion that justice should not only be done, but it should also be seen to be done: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 345. The test to be satisfied is "whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision": NADH v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [14] . 50 However, the enquiry is not directed to the personal thought processes of the decision maker, but to the conduct "objectified" though the prism of what a fair minded and informed observer would reasonably apprehend: NADH at [21]. Cases of apprehended bias have been established where there has been constant interruptions and challenges to an applicant's evidence: Re Refugee Review Tribunal; Ex Parte H per Gleeson CJ, Gaudron and Gummow J at 71; VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [68] and [82]; NADH per Allsop J at [118]; a hostile attitude, inappropriate tone or hectoring: VFAB at [50], [52]; a failure to acknowledge mistakes: VFAB at [60]; an aggressive and unfair style of questioning: VFAB at [68] and [82]; conduct amounting to intimidation: Re Refugee Review Tribunal; Ex parte H per Gleeson CJ, Gaudron and Gummow J at [31]; unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation: NADH per Allsop J at [35], [39], [47], [53], and brevity of reasoning when more reasoning is demanded: NADH per Allsop J at [35], [39], [47], [53].
Case: NBMB v Minister for Immigration &amp; Citizenship [2008] FCA 149 
Outcome: cited
It is to be remembered that the proceedings before a Tribunal are inquisitorial in nature. There is a distinct difference between judicial officers and Tribunal Members. Judicial officers are required to act both impartially and in a "judicial" manner. A Tribunal Member's role in conducting a review is to "get any information that it considers relevant"; s 424(1) of the Act : NBMB v Minister for Immigration &amp; Citizenship [2008] FCA 149 at [7] . In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 the court said: Where, as in the present case, credibility is an issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question... Where however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person who's evidence is in question being overborne or intimidated. If that should happen, a fair minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision maker's view.
Case: Re Minister for Immigration and Multicultural Affairs; Ex Parte Epeabaka [2001] HCA 23 ; (2001) 179 ALR 296 
Outcome: cited
The test of whether a fair minded lay observer would apprehend bias on the part of the Tribunal requires something more than a feeling that conventions of discretion and prudence have been breached. Something more is required, and the apprehension must be firmly established: Re Minister for Immigration and Multicultural Affairs; Ex Parte Epeabaka [2001] HCA 23 ; (2001) 179 ALR 296 at [15] and per Kirby J at [53]-[65], and [89]-[95].
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
It is to be remembered that the proceedings before a Tribunal are inquisitorial in nature. There is a distinct difference between judicial officers and Tribunal Members. Judicial officers are required to act both impartially and in a "judicial" manner. A Tribunal Member's role in conducting a review is to "get any information that it considers relevant"; s 424(1) of the Act : NBMB v Minister for Immigration &amp; Citizenship [2008] FCA 149 at [7] . In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 the court said: Where, as in the present case, credibility is an issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question... Where however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person who's evidence is in question being overborne or intimidated. If that should happen, a fair minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision maker's view. 50 However, the enquiry is not directed to the personal thought processes of the decision maker, but to the conduct "objectified" though the prism of what a fair minded and informed observer would reasonably apprehend: NADH at [21]. Cases of apprehended bias have been established where there has been constant interruptions and challenges to an applicant's evidence: Re Refugee Review Tribunal; Ex Parte H per Gleeson CJ, Gaudron and Gummow J at 71; VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [68] and [82]; NADH per Allsop J at [118]; a hostile attitude, inappropriate tone or hectoring: VFAB at [50], [52]; a failure to acknowledge mistakes: VFAB at [60]; an aggressive and unfair style of questioning: VFAB at [68] and [82]; conduct amounting to intimidation: Re Refugee Review Tribunal; Ex parte H per Gleeson CJ, Gaudron and Gummow J at [31]; unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation: NADH per Allsop J at [35], [39], [47], [53], and brevity of reasoning when more reasoning is demanded: NADH per Allsop J at [35], [39], [47], [53].
Case: VFAB v Minister for Immigration &amp; Multicultural &amp; indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 
Outcome: cited
However, the enquiry is not directed to the personal thought processes of the decision maker, but to the conduct "objectified" though the prism of what a fair minded and informed observer would reasonably apprehend: NADH at [21]. Cases of apprehended bias have been established where there has been constant interruptions and challenges to an applicant's evidence: Re Refugee Review Tribunal; Ex Parte H per Gleeson CJ, Gaudron and Gummow J at 71; VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [68] and [82]; NADH per Allsop J at [118]; a hostile attitude, inappropriate tone or hectoring: VFAB at [50], [52]; a failure to acknowledge mistakes: VFAB at [60]; an aggressive and unfair style of questioning: VFAB at [68] and [82]; conduct amounting to intimidation: Re Refugee Review Tribunal; Ex parte H per Gleeson CJ, Gaudron and Gummow J at [31]; unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation: NADH per Allsop J at [35], [39], [47], [53], and brevity of reasoning when more reasoning is demanded: NADH per Allsop J at [35], [39], [47], [53].
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
In my opinion, for these reasons the proposed new second ground raising apprehended bias has no reasonable prospect of succeeding on appeal were leave to be granted. On this basis alone I would refuse leave to the appellant to raise this ground not argued before the Court below: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] - [27] . 121 Leave is granted to amend the first ground of appeal in terms of paragraph 1 of the Amended Notice of Appeal dated 4 March 2008. 122 The appeal ought be allowed. I will hear the parties on the question of costs given the divided success in relation to the issues before the Court. I will also hear the parties on the question of costs in connection with the application before the Federal Magistrate. The orders of the Federal Magistrates Court made on 18 October 2007 will be set aside. In lieu, there will be orders that: (a) the decision of the Refugee Review Tribunal dated 28 November 2006 be quashed; (b) the application for review be remitted to the Tribunal, differently constituted, to be re-determined according to law. I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 24 July 2008 Counsel for the Appellants: Mr D Jenkins Solicitors for the Appellants: Simon Jeans &amp; Associates Counsel for the Respondent: Ms L. Clegg Solicitors for the Respondent: Sparke Helmore Date of Hearing: 5 March 2008, 18 April 2008 Date of Judgment: 24 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/238.html
Case: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 511 
Outcome: cited
While it is accepted that a perfect interpretation is never possible, it is essential that the interpreter serve as an accurate means of communication between the parties: Gaio v The Queen [1964] PGHCA 2 ; (1960) 104 CLR 419 at 433. It is sufficient that the translation is sufficiently accurate so as to convey the idea or concept being communicated: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 511 at [66].
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: referred to
Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") provides that a person such as the applicant may appeal to this Court "on a question of law" from any decision of the Tribunal. The AAT Act provides that such an appeal is to be instituted not later than 28 days after "a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the [Court] allows": see s 44(2A) of the AAT Act . Where a person makes an application to institute an appeal out of time, the Court will consider the relevant factors, including any explanation the applicant may advance for the delay and the applicant's prospects on the appeal, if leave were granted: see, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J. There may be other matters too, such as the prejudice to the applicant, or the respondent. 13 It is not suggested that the respondent would suffer any prejudice by reason of the applicant's delay in instituting the appeal if leave were granted. The Tribunal gave its decision on 10 November 2006 and emailed a copy of the decision to the applicant's accountant the same day. The delay in instituting this application on 11 December 2006 is insignificant. Unsurprisingly, the respondent neither consents to nor opposes the application for an extension of time. 14 If there were merit in the appeal, then a refusal to grant leave would plainly prejudice the applicant.
Case: Ergon Energy Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551
Outcome: referred to
First, the notice of appeal as presently drafted does not state a ground of appeal that this Court can hear and determine. Under s 44(1) of the AAT Act , the subject matter of an appeal from the Tribunal is the question of law that is raised by the appeal: see Ergon Energy Corporation Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 572 per Gyles J (dissenting in the application of the principle) and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 per Branson J.
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: referred to
First, the notice of appeal as presently drafted does not state a ground of appeal that this Court can hear and determine. Under s 44(1) of the AAT Act , the subject matter of an appeal from the Tribunal is the question of law that is raised by the appeal: see Ergon Energy Corporation Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 572 per Gyles J (dissenting in the application of the principle) and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 per Branson J.