mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 , 102 ALD 598
Outcome: cited
to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed: [21] We cannot accept this submission, for several reasons. For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this 'appeared' to be the case 'from the record of the [Tribunal] decision'. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appelant [ sic ] has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, " simply made its comments based on the particular facts of that case ": SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32] , 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30] [2004] HCA 62 ; , 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case.
Case: SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286
Outcome: cited
is unnecessary to resolve a third contention advanced by the Minister. This contention was that s 91R(3) is not engaged where an applicant does not seek to rely on conduct in Australia to support a well-founded fear of persecution (cf SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] per Jacobson J; SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286 at [21] per Jacobson J) or where evidence of conduct is adduced or called by an applicant ( SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [16] and [21] to [23] per Spender, Edmonds and Tracey JJ). The contention was that the present Appellant did not seek to rely upon the 1999 or 2000 conduct and did not adduce evidence of such conduct.
Case: SZMTJ v Minister for Immigration and Citizenship [2009] FCA 175
Outcome: cited
manner in which the Federal Magistrate exercised his discretion was the occasion for a referral to be made pursuant to Order 80 r 4 of the Federal Court Rules 1979 (Cth): SZMTJ v Minister for Immigration and Citizenship [2009] FCA 175. Mr Prince of Counsel accepted that referral and appeared as pro bono counsel for the Appellant. The Court is indeed appreciative of his acceptance of the referral and the detailed and careful submissions advanced both in writing and at the hearing of the appeal. Now before the Court are: (i) an application by the Respondent Minister to file a Notice of Contention ; (ii) an application by the Appellant to file an Amended Notice of Appeal ; and (iii) the existing Notice of Appeal . The Notice of Contention seeks to raise a number of contentions as to the construction of s 91R(3) of the Migration Act 1958 (Cth) and its application to the facts. The appeal is to be dismissed.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: cited
for the Respondent Minister opposed the grant of leave to amend to raise either ground primarily upon the basis that neither ground had any merit. He further opposed the application to raise a contravention of s 425 on the basis of prejudice. The Respondent Minister did not contend that this Court, when hearing an appeal under the Migration Act 1958 (Cth) from a Federal Magistrate, does not have jurisdiction to entertain an argument not previously advanced. Indeed, to do otherwise may have precluded him from raising at least some of the contentions sought to be advanced in the Notice of Contention . The jurisdiction of the Court to entertain a new argument was accepted to be only constrained by the well accepted principle as to whether it is " expedient in the interests of justice to do so ...": e.g. VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ; Commissioner, Australian Federal Police v Oke [2007] FCAFC 94 at [17] , [2007] FCAFC 94 ; 159 FCR 441 at 444 per Branson, Lindgren and Besanko JJ.
Case: MZWKJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1294
Outcome: referred to
In rejecting the appellants' judicial review application, the learned Federal Magistrate held that the principles of Anshun estoppel applied as a result of the previous judicial review proceedings. His Honour did not find it necessary to consider whether issue estoppel applied: see MZWKJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1294 (" MZWKJ ") at [28]. His Honour said, at [12], that: "In my view the nature of the grounds claimed in this case are so similar, in substance, to those the subject of the order nisi application (even on the best case of the applicant with respect to the difference in focus between the country information and inconsistencies in evidence) that nonetheless the arguments ought to have all been brought as part of the initial proceedings. I fine that it was unreasonable that the applicant did not pursue his current basis for judicial review in the proceedings previously pending before Weinberg J, which were dismissed." 5 His Honour formed the view (at [13]) that in light of this it was necessary for him to determine "whether or not there are circumstances in this case which would justify granting the applicant leave to litigate these issues, despite having had an opportunity to do so before Weinberg J and not pursuing them on that occasion". After considering the matters on which the applicant relied in this regard, his Honour held, at [26], that the circumstances did not justify a further hearing. 6 By their notice of appeal filed on 8 July 2005, the appellants challenged the judgment of the Federal Magistrate on the grounds that: "1. The learned Magistrate erred in finding that the application before him was barred by Anshun estoppel or otherwise. 2. The learned Magistrate erred in not finding that the decision of the [Tribunal] ... was affected by jurisdictional error or that the Tribunal had acted without jurisdiction."
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: applied
The appellants relied on the affidavits before the Federal Magistrate and also sought to rely on an affidavit of the first appellant sworn on 15 June 2006 (referred to below as "the 15 June 2006 affidavit"). In an outline of submissions filed on 2 December 2005, the appellants stated that the issues raised by the appeal were: (1) whether his Honour was correct in holding that Anshun estoppel applied; and (2) if his Honour was correct, did he err in finding that there were not "special circumstances" such as to justify a further hearing despite the rule in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 (" Anshun "). 17 Thirdly, in the circumstances of this case, it is clear enough that Anshun estoppel applies in the substantive proceeding as against the appellants. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the "procedural fairness" ground that the appellants now seek to advance might have been brought forward for Weinberg J's consideration. Sundberg J reached the same conclusion in relation to much the same submission in MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501 (" MZWGJ "), when he rejected a similar submission that Anshun estoppel did not apply in a subsequent judicial review proceeding because of the different focus of the Muin and Lie litigation. Indeed, as counsel for the first respondent observed, the grounds of the draft order nisi considered by Weinberg J were not, in any case, confined to an alleged failure to observe procedural fairness by virtue of a failure to afford an opportunity to comment on country information, which was the focus of Muin . They went much wider than this. On one reading, moreover, the draft grounds were capable of embracing the "inconsistencies" point that the appellants sought to raise in the present proceeding.
Case: Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: referred to
In oral submissions, in respect of both limbs of his argument, counsel for the appellants emphasized that the proceeding in the High Court was part of what is sometimes referred to as the "Muin and Lie" litigation and focussed on the Tribunal's use of "country information": see Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal in [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin "). Counsel for the appellants submitted that the documents relevant to the High Court proceeding should be viewed in this light. The appellants further contended that, by the present proceeding, they desired to raise "a different aspect of the audi alteram partem rule ... relating to the extent of the obligation of the Tribunal to put to applicants for comment matters of inconsistency within or between the evidence of applicants or witnesses". 9 In written submissions, the appellants contended that there were special circumstances having regard to the following matters: "(a) The case potentially involves questions of life and liberty; (b) The Minister is a respondent in her official capacity by force of statute, not in her personal capacity; (c) The appellants were unrepresented at the earlier Court proceedings; (d) If there was procedural unfairness in relation to the decision, it is jurisdictional error of such seriousness that usually relief would follow almost as of right." 17 Thirdly, in the circumstances of this case, it is clear enough that Anshun estoppel applies in the substantive proceeding as against the appellants. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the "procedural fairness" ground that the appellants now seek to advance might have been brought forward for Weinberg J's consideration. Sundberg J reached the same conclusion in relation to much the same submission in MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501 (" MZWGJ "), when he rejected a similar submission that Anshun estoppel did not apply in a subsequent judicial review proceeding because of the different focus of the Muin and Lie litigation. Indeed, as counsel for the first respondent observed, the grounds of the draft order nisi considered by Weinberg J were not, in any case, confined to an alleged failure to observe procedural fairness by virtue of a failure to afford an opportunity to comment on country information, which was the focus of Muin . They went much wider than this. On one reading, moreover, the draft grounds were capable of embracing the "inconsistencies" point that the appellants sought to raise in the present proceeding.
Case: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24
Outcome: cited
First, I would not grant leave to the appellants to rely on the 15 June 2006 affidavit. As the Full Court said in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43] , a party seeking to adduce further evidence on an appeal must show, first, that he could not, with reasonable diligence, have adduced the evidence at trial and, secondly, the evidence must be such that the result would very probably have been different. It is clear enough from its contents that the 15 June 2006 affidavit cannot satisfy the first condition. Nor, having regard to the reasons stated below, can the appellants satisfy the second condition.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
Secondly, I note that s 424A of the Migration Act 1958 (Cth) ("the Act ") was not enacted at the relevant time and therefore does not apply. As a consequence, the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 has no application to this case.
Case: MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501
Outcome: discussed
Thirdly, in the circumstances of this case, it is clear enough that Anshun estoppel applies in the substantive proceeding as against the appellants. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Plainly enough, the "procedural fairness" ground that the appellants now seek to advance might have been brought forward for Weinberg J's consideration. Sundberg J reached the same conclusion in relation to much the same submission in MZWGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1501 (" MZWGJ "), when he rejected a similar submission that Anshun estoppel did not apply in a subsequent judicial review proceeding because of the different focus of the Muin and Lie litigation. Indeed, as counsel for the first respondent observed, the grounds of the draft order nisi considered by Weinberg J were not, in any case, confined to an alleged failure to observe procedural fairness by virtue of a failure to afford an opportunity to comment on country information, which was the focus of Muin . They went much wider than this. On one reading, moreover, the draft grounds were capable of embracing the "inconsistencies" point that the appellants sought to raise in the present proceeding. 19 In this case, the appellants relied heavily on their lack of representation before Weinberg J, although it is common ground that they were represented before the Tribunal and filed their application in the High Court with legal assistance. As Sundberg J said in MZWGJ at [11], the lack of legal representation cannot of itself amount to special circumstances sufficient to warrant the court declining to apply Anshun estoppel. I agree. There is nothing in this case that would lend particular weight to this consideration. 20 As to the fourth consideration relied on by the appellants (see [9] above), I accept the respondent's submission that his Honour was entitled to find that there was inordinate delay in not only commencing the present proceeding but also in the commencement of the order nisi application eventually heard by Weinberg J. This delay was plainly relevant, bearing in mind that delay of this kind can preclude the relief that the appellants ultimately seek even if successful.
Case: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: cited
Indeed, although it is unnecessary to decide the point, unlike his Honour, I would not accept that the substantive case that the appellants desire to make is a tenable one. The appellants' submission that they were denied procedural fairness because the Tribunal did not put all the inconsistencies mentioned in its reasons to them for comment before deciding the case against them does not disclose an arguable case. This is tolerably clear when regard is had to the well-recognized principles referred to in the first respondent's submissions: see [16] above and authorities such as Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (" Alphaone "); Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 (" Pilbara Aboriginal Land Council "); and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 (" Cassim "). It is well established that there will be no breach of procedural fairness when the Tribunal acts on information of which applicants should be aware: see Cassim at 214 [22]. It is apparent from the Tribunal's reasons that the appellants' legal representative was present throughout the hearing and was or should have been aware of the evidence that gave rise to the inconsistencies to which the Tribunal referred in its reasons. Further, the rules of procedural fairness do not require the Tribunal to notify an applicant of its mental processes or to provide an opportunity for it to comment on its findings before they are made: Alphaone at 591-592; also Pilbara Aboriginal Land Council at 555-557 [63]-[73]; and Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [14] - [16] . The suggested obligation for which the appellants would contend amounts in substance to saying that the Tribunal was under obligations of a kind that the authorities have rejected.
Case: Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539
Outcome: cited
Indeed, although it is unnecessary to decide the point, unlike his Honour, I would not accept that the substantive case that the appellants desire to make is a tenable one. The appellants' submission that they were denied procedural fairness because the Tribunal did not put all the inconsistencies mentioned in its reasons to them for comment before deciding the case against them does not disclose an arguable case. This is tolerably clear when regard is had to the well-recognized principles referred to in the first respondent's submissions: see [16] above and authorities such as Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (" Alphaone "); Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 (" Pilbara Aboriginal Land Council "); and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 (" Cassim "). It is well established that there will be no breach of procedural fairness when the Tribunal acts on information of which applicants should be aware: see Cassim at 214 [22]. It is apparent from the Tribunal's reasons that the appellants' legal representative was present throughout the hearing and was or should have been aware of the evidence that gave rise to the inconsistencies to which the Tribunal referred in its reasons. Further, the rules of procedural fairness do not require the Tribunal to notify an applicant of its mental processes or to provide an opportunity for it to comment on its findings before they are made: Alphaone at 591-592; also Pilbara Aboriginal Land Council at 555-557 [63]-[73]; and Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [14] - [16] . The suggested obligation for which the appellants would contend amounts in substance to saying that the Tribunal was under obligations of a kind that the authorities have rejected.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209
Outcome: cited
Indeed, although it is unnecessary to decide the point, unlike his Honour, I would not accept that the substantive case that the appellants desire to make is a tenable one. The appellants' submission that they were denied procedural fairness because the Tribunal did not put all the inconsistencies mentioned in its reasons to them for comment before deciding the case against them does not disclose an arguable case. This is tolerably clear when regard is had to the well-recognized principles referred to in the first respondent's submissions: see [16] above and authorities such as Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (" Alphaone "); Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 (" Pilbara Aboriginal Land Council "); and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 (" Cassim "). It is well established that there will be no breach of procedural fairness when the Tribunal acts on information of which applicants should be aware: see Cassim at 214 [22]. It is apparent from the Tribunal's reasons that the appellants' legal representative was present throughout the hearing and was or should have been aware of the evidence that gave rise to the inconsistencies to which the Tribunal referred in its reasons. Further, the rules of procedural fairness do not require the Tribunal to notify an applicant of its mental processes or to provide an opportunity for it to comment on its findings before they are made: Alphaone at 591-592; also Pilbara Aboriginal Land Council at 555-557 [63]-[73]; and Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [14] - [16] . The suggested obligation for which the appellants would contend amounts in substance to saying that the Tribunal was under obligations of a kind that the authorities have rejected.