mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Outcome: cited
The Tribunal's findings on credibility were central to its decision. A finding on credibility that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. Findings on credibility were described by McHugh J in Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 as the function of the primary decision-maker, par excellence: at 423 [67]. That does not mean that such findings are invulnerable to review, but it does mean that they will not ordinarily be reviewable if the Tribunal has provided a rational basis for rejecting the claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.
Case: Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
The Tribunal's findings on credibility were central to its decision. A finding on credibility that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. Findings on credibility were described by McHugh J in Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 as the function of the primary decision-maker, par excellence: at 423 [67]. That does not mean that such findings are invulnerable to review, but it does mean that they will not ordinarily be reviewable if the Tribunal has provided a rational basis for rejecting the claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.
Case: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Outcome: cited
The Tribunal's findings on credibility were central to its decision. A finding on credibility that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. Findings on credibility were described by McHugh J in Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 as the function of the primary decision-maker, par excellence: at 423 [67]. That does not mean that such findings are invulnerable to review, but it does mean that they will not ordinarily be reviewable if the Tribunal has provided a rational basis for rejecting the claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
The notice of appeal alleged a number of jurisdictional errors. First, it was contended that the Tribunal erred in adopting an unduly harsh approach to the requirement that there be a well-founded fear of persecution for a Convention reason, and more particularly, that the Tribunal did not apply the 'real chance' test enunciated in cases such as Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 (' Chan' ). Those cases require both a subjective apprehension of persecution and an apprehension that is grounded in objective reality. This has been described as a 'real chance' of persecution, namely, a chance that is not remote or insubstantial or a far-fetched possibility: see Chan at 389, 398, 407 and 429. Secondly, the notice of appeal contended that the Tribunal made errors in its assessment of 'serious harm' as embodied in s 91R(1)(b) of the Migration Act 1958 (Cth). Thirdly, the notice of appeal contended that the Tribunal erred by basing its findings on country information concerning the Naxalite movement, rather than on information provided by the appellant. The fourth ground of appeal was that the Tribunal misdirected itself by failing to correctly identify the appellant's social and political group, which was described as a non-violent segment of the Naxalite movement. Finally, the notice of appeal raised a contention that the Tribunal was biased. This contention appears to be largely premised upon the way in which the Tribunal questioned the appellant and then proceeded to reach conclusions as to his credibility.
Case: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379
Outcome: cited
The notice of appeal alleged a number of jurisdictional errors. First, it was contended that the Tribunal erred in adopting an unduly harsh approach to the requirement that there be a well-founded fear of persecution for a Convention reason, and more particularly, that the Tribunal did not apply the 'real chance' test enunciated in cases such as Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 (' Chan' ). Those cases require both a subjective apprehension of persecution and an apprehension that is grounded in objective reality. This has been described as a 'real chance' of persecution, namely, a chance that is not remote or insubstantial or a far-fetched possibility: see Chan at 389, 398, 407 and 429. Secondly, the notice of appeal contended that the Tribunal made errors in its assessment of 'serious harm' as embodied in s 91R(1)(b) of the Migration Act 1958 (Cth). Thirdly, the notice of appeal contended that the Tribunal erred by basing its findings on country information concerning the Naxalite movement, rather than on information provided by the appellant. The fourth ground of appeal was that the Tribunal misdirected itself by failing to correctly identify the appellant's social and political group, which was described as a non-violent segment of the Naxalite movement. Finally, the notice of appeal raised a contention that the Tribunal was biased. This contention appears to be largely premised upon the way in which the Tribunal questioned the appellant and then proceeded to reach conclusions as to his credibility.
Case: Bodney v Brophy [2004] FCAFC 226
Outcome: cited
It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules , having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91.
Case: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404
Outcome: cited
Section 31A of the Federal Court of Australia Act expressly modifies the position which would otherwise prevail, having regard to the root authorities mentioned, in the determination of whether an application has reasonable prospects of success. A question which emerges is whether s 190F(6), like s 84C, merely highlights a particular basis for summary dismissal leaving the general law on that subject applicable or whether it, too, should be regarded as providing a unique power of dismissal which "is to be construed and applied according to its terms, not under the influence of 'muffled echoes of old arguments' concerning other legislation": Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 , at 414. 38 Subsection 190F(6) is found within Pt 7 of the Native Title Act , which is concerned with the registration of native title claims on the Register established under that Part. It was added to the Native Title Act last year by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) (The Technical Amendments Act); by s 3 and Sch 1, Pt 1, item 107 of that Act. 39 On its face, s 190F(6) of the Native Title Act appears to provide for a wholly self-contained power of dismissal. The ability to exercise that power is engaged only by the fulfilment of conditions precedent which are set out in s 190F(5). Once engaged, the subsection itself sets out, in para (a) and para (b) the considerations which are relevant.
Case: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: considered
It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules , having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: considered
It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules , having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91. 50 Part 7 was inserted into the Native Title Act by the 1998 Amendment Act . In Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 at [6] , Hely J remarked of the claim registration regime introduced by Pt 7 that: 6 The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered. Strictly, even after the amendments made by the Technical Amendments Act , it remains true that the registration test found in Pt 7 is "not a screening mechanism for access to the Federal Court" (my emphasis). That is so if for no other reason than that satisfaction of the registration test is not a condition precedent to the ability to file in the Court an application for determination of a native title claim. However, the presence now of s 190F(6) in the Native Title Act and the particular occasion for its engagement provided by s 190F(5) does indicate that satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court's list. Further, given that the Act confers the choice of a full right of review by the Court of the registration refusal decision and vests in the Court a discretion as to whether the application should be dismissed, that the registration decision is initially made by an administrative official is not indicative of an impermissible interference by the Executive with the exercise of the judicial power of the Commonwealth. It is s 190F(6) which provides the "screening mechanism".
Case: Northern Territory v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112
Outcome: considered
The Delegate commenced her consideration of whether the application's factual basis supported the assertions set out in subparas 190B(5)(a) to (c) by reminding herself of what Mansfield J had said of s. 190B(5) of the Native Title Act in Northern Territory v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112 at 120, [17] : Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the "factual basis on which it is asserted" that the claimed native title rights and interests exist "is sufficient to support the assertion". That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. I note that this particular passage from Doepel's Case was recently expressly approved by the Full Court in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 (French, Moore and Lindgren JJ) at [82]. The emphasis evident in the passage quoted is that which the Full Court gave to those words in the Gudjala People # 2 Case. For reasons which will become apparent, it will be necessary later to return to the Full Court's reasons in the Gudjala People # 2 Case.
Case: The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330
Outcome: distinguished
Part 7 was inserted into the Native Title Act by the 1998 Amendment Act . In Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 at [6] , Hely J remarked of the claim registration regime introduced by Pt 7 that: 6 The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered. Strictly, even after the amendments made by the Technical Amendments Act , it remains true that the registration test found in Pt 7 is "not a screening mechanism for access to the Federal Court" (my emphasis). That is so if for no other reason than that satisfaction of the registration test is not a condition precedent to the ability to file in the Court an application for determination of a native title claim. However, the presence now of s 190F(6) in the Native Title Act and the particular occasion for its engagement provided by s 190F(5) does indicate that satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court's list. Further, given that the Act confers the choice of a full right of review by the Court of the registration refusal decision and vests in the Court a discretion as to whether the application should be dismissed, that the registration decision is initially made by an administrative official is not indicative of an impermissible interference by the Executive with the exercise of the judicial power of the Commonwealth. It is s 190F(6) which provides the "screening mechanism".
Case: Williams v Grant [2004] FCAFC 178
Outcome: cited
It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules , having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91.
Case: SZDPY v Minister for Immigration and Multicultural Affairs and Indigenous [2006] FMCA 10
Outcome: referred to
This is an appeal from a judgment of a Federal Magistrate given on 24 January 2006 dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"): see SZDPY v Minister for Immigration and Multicultural Affairs and Indigenous [2006] FMCA 10. The Tribunal affirmed the decision of the respondent's delegate to refuse the appellant a protection visa (class XA). 2 According to the Tribunal, the appellant is a citizen of India and from a Hindu family. His parents are participants in religious activities and supporters of a Hindu political party. The appellant arrived in Australia on 8 December 1998. While in Australia the appellant converted to Islam. On 15 March 2001 the appellant applied for a protection visa claiming to have a well-founded fear of persecution if he returned to India for reasons of religion. 3 In his protection visa application, the appellant gave details of his education and work history. Information as to his education took the form of a list of the institutions he had attended and the dates of his attendance. The institutions listed were the appellant's high school, the National Institute of Sales and Marketing in Delhi and the Sydney International College of Business. He also listed his employers, dates of employment and salaries.
Case: S395/2002 v Minister for Immigration &amp; Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: referred to
Before the Federal Magistrate, the appellant's primary argument was that the Tribunal, by considering the possibility of relocation and concealing his whereabouts from relatives, was requiring him to avoid harm by acting discreetly in the practise of his religion. The appellant argued this was an error of law as identified by the High Court in S395/2002 v Minister for Immigration &amp; Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. 11 The Federal Magistrate found that the Tribunal's decision was not based on a finding that the appellant would be required to modify his behaviour. Rather, his Honour held that the Tribunal had determined that wherever the appellant chose to live in India he could continue the normal practice of his religion without fear of persecution. Also, the Federal Magistrate concluded that the Tribunal's finding about relocation was an alternate ground relating to the appellant's fear of coming to serious harm on account of his conversion. On this view, the Tribunal had independently concluded that the appellant's fears of persecution relating to his conversion were not well-founded. The Federal Magistrate concluded that while "[i]t may be possible to interpret the Tribunal's question [that he could move and not tell his relatives] as involving the proposition that the appellant could modify his behaviour, it was not the basis of the tribunal's findings in its reasons". 12 The first respondent also argued before the Federal Magistrate that the appeal was barred by Anshun estoppel. Having found on other grounds that the appeal should be dismissed, the Federal Magistrate did not need to consider this ground. 13 In a notice of appeal dated 21 February 2006 the appellant submitted two grounds of appeal. The first ground challenged the Federal Magistrate's finding that Tribunal's decision did not necessitate any change of behaviour by the appellant in the normal practice of his new religion, particularly, "in circumstances where the change in location would require the appellant to be discreet in terms of his religious and family history". The second ground of appeal was that the Federal Magistrate erred in finding that the relocation finding was not the primary basis of the Tribunal's decision. At the hearing of the appeal, counsel for the appellant abandoned both these grounds of appeal and relied instead on a new ground set out in an amended notice of appeal filed on 18 May 2006. 14 This new ground was that the Tribunal breached s 424A of the Act. The appellant now claims that the Tribunal erred when it "did not disclose certain adverse information as required by s 424A(1)" and that this information was ... "[t]he educational history of the [appellant] provided in his application for a protection visa".