mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Akiba v State of Queensland (No 1) [2006] FCA 1102
Outcome: cited
a general case management directions hearing convened on Thursday Island on 7 July 2006 the joinder motions were argued. Orders were made for the joinder of MG Kailis Pty Ltd. A motion for the joinder of the Torres Shire Council was heard on that day and dismissed on 18 August 2006 Akiba v State of Queensland (No 1) [2006] FCA 1102. A further motion by Mr Pende Gamogab for the Dangaloub-Gizra group at Kupere Village sought his joinder on their behalf. For the reasons that follow, although I consider that Mr Gamogab has an interest which would render him eligible for joinder as a party, I am of the opinion that as a matter of discretion he should not be joined and his motion will be dismissed. The reasons informing the exercise of my discretion in that respect may also affect the position of other PNG nationals who are currently parties to these proceedings. In an affidavit sworn on 14 July 2005, Mr Gamogab described himself as a subsistence farmer and says he lives at the Kupere Village in the South Fly District. He asserted, on behalf of a group he called the Dangaloub-Gizra, traditional rights of movement and ownership and use of resources in the Torres Strait region which is now subject to the Torres Strait Regional Seas Claim. He said, inter alia: claim ourselves to be a party to true traditional inherent land and resource owners and users as original inhabitants of our customary land on the coast and in the sea together with our SIEPAM (TORRES STRAIT ISLANDER) and ABARSEN (MALIG and GUDANG ABORIGINES) relatives.' He said that they seek recognition by Australia of their traditional inherent rights of access and movement for traditional purposes in the Torres Strait region and of their usage and ownership of traditionally shared resources in the same or similar manner as Australia has done for their Torres Strait Islander and Aboriginal relatives. Mr Gamogab set out some Dangaloub-Gizra oral history and what he called the Myth of Origin passed orally from generation to generation, from time in antiquity to the present. According to this myth the Gizra (Dangaloub and Gizra), the Siepam (Torres Strait Islanders) and the Abarsen (Malig and Gudang Aborigines) were all created together. They initially lived together in a traditional village (KOBO) sharing life and culture, initiation practices and the resources of the land and sea until separation. The reference to separation appears to have been related to the inundation of the ancient land bridge joining Australia and PNG.
Case: Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46
Outcome: cited
kind of interest necessary to enliven the discretion under s 84(5) can include '... a special well-established non-proprietary connection with land or waters that is of significance to that person'. The interest need not be proprietary or legal or equitable in nature. It must not be indirect, remote or lacking in substance. It will not include interests of an emotional, conscientious, ideological or intellectual kind Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46 at 51-52 (Black CJ, see also at 84 Merkel J).
Case: Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 , 91 FCR 248
Outcome: followed
A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.
Case: Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230
Outcome: followed
Other decisions have also recognised that a meaningful opportunity to give evidence and present arguments, in the case of a person who is not fluent in the English language, will only be afforded if an interpreter is present and it is evident that, subject to reasonably accurate interpretation, that which an applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to an applicant is fairly interpreted: SZGYM v Minister for Immigration &amp; Citizenship [2007] FCA 1923 at [27] . An inadequate translation service may deprive a party of an effective opportunity to present his case where the standard of interpretation at the Tribunal hearing is so inadequate that the appellant is effectively prevented from giving evidence at the Tribunal: W284 v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1788 ; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 , 122 FCR 322 ; Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230.
Case: Attorney-General v Udompun [2005] 3 NZLR 204
Outcome: followed
In the present proceedings there is thus no basis upon which it can be concluded that there has been any denial of procedural fairness and no basis upon which it can be concluded that the Appellant has been deprived of an effective opportunity to present his case before the Tribunal. No instance has been given of the assistance in fact provided to the now Appellant by the interpreter being in any way deficient or inadequate. No question arises in the present proceedings of any consideration having to be given to whether a requirement to provide an interpreter is to be constrained by reference to any " reasonableness requirement ": cf Attorney-General v Udompun [2005] 3 NZLR 204 at 225. 35 The second Ground of Appeal is also rejected.
Case: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747
Outcome: followed
A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.
Case: Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 , 97 ALD 746
Outcome: considered
As was correctly concluded by the Federal Magistrates Court, there is no obligation upon an administrative tribunal, and no obligation imposed upon the Refugee Review Tribunal, to refer to each piece of evidence placed before it for consideration and no obligation to either explain why it accepts or rejects particular evidence. An administrative tribunal is thus not normally required to state what evidence is accepted, rejected or taken into account with respect to findings of fact: cf Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617. An administrative tribunal is not required " to give a subset of reasons [as to] why it accepted or rejected individual pieces of evidence ": cf Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 at [44] , [2007] FCA 1538 ; 97 ALD 746 at 755.
Case: Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617
Outcome: considered
As was correctly concluded by the Federal Magistrates Court, there is no obligation upon an administrative tribunal, and no obligation imposed upon the Refugee Review Tribunal, to refer to each piece of evidence placed before it for consideration and no obligation to either explain why it accepts or rejects particular evidence. An administrative tribunal is thus not normally required to state what evidence is accepted, rejected or taken into account with respect to findings of fact: cf Guy v Repatriation Commission [2002] FCA 525 , 74 ALD 617. An administrative tribunal is not required " to give a subset of reasons [as to] why it accepted or rejected individual pieces of evidence ": cf Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 at [44] , [2007] FCA 1538 ; 97 ALD 746 at 755.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: considered
A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.
Case: Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 136
Outcome: followed
A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.
Case: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 , 183 ALR 188
Outcome: followed
The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. 30 The importance of the role potentially to be played by a competent interpreter in ensuring the effectiveness of such a hearing has been recognised in both the legislation and prior decisions of this Court. Section 427(7) of the 1958 Act thus provides: If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter. The sub-section, it is noted, confers a discretion. 31 Prior decisions of this Court also recognise that an effective opportunity to be heard may require the provision of an interpreter. In Mazhar , Goldberg J went on to observe: [31] ... If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s 425(1). Absent an interpreter, the Tribunal may be unable to afford an effective opportunity to a non-English speaking applicant to give evidence and the Tribunal, it has been said, lacks jurisdiction to continue the hearing unless an interpreter is provided: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [21] , [1999] FCA 507 ; 92 FCR 6 at 17 per Kenny J.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 207 ALR 12
Outcome: followed
Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an " inquisitorial process ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8. Allsop J there observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 30 3. 19 There is no unqualified duty imposed upon the Tribunal to make all such inquiries or to undertake all such investigations as a party may wish to be undertaken: cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZEEU v Minister for Immigration &amp; Citizenship [2008] FCA 269 at [44] .
Case: NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 , 214 ALR 264
Outcome: considered
A discrete submission made orally by the Appellant at the hearing of the appeal was that the provision of the interpreter in fact provided was made " intentionally " so as to deprive the Appellant of an opportunity to be heard. The submission was understood to be that the Tribunal was biased. It was not a submission advanced before the Federal Magistrates Court. That submission is, however, without substance and is rejected. There is no basis upon which a " fair-minded and informed person might reasonably apprehend that the [Tribunal] might not bring or have brought an impartial mind to bear on the decision " by reason of the interpreter in fact provided to the now Appellant: cf NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] , [2004] FCAFC 328 ; 214 ALR 264 at 268. A reasonable apprehension of bias, it has been said, must be " firmly established ": Re JRL ; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. Nothing in the present proceedings even approaches such a basis being established.
Case: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 , 92 FCR 6
Outcome: followed
Prior decisions of this Court also recognise that an effective opportunity to be heard may require the provision of an interpreter. In Mazhar , Goldberg J went on to observe: [31] ... If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s 425(1). Absent an interpreter, the Tribunal may be unable to afford an effective opportunity to a non-English speaking applicant to give evidence and the Tribunal, it has been said, lacks jurisdiction to continue the hearing unless an interpreter is provided: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [21] , [1999] FCA 507 ; 92 FCR 6 at 17 per Kenny J.