mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39]
Outcome: discussed
In NAZY [2005] FCA 744 the appellant had made a certain statement in answer to a question in his protection visa application form. The Tribunal in the course of the hearing referred to an inconsistency between the answer to that question and the appellant's oral evidence before the Tribunal as one of the reasons for rejecting his claim. The inconsistency was put orally to the appellant in the course of the hearing. Jacobson J held that s 424A(1) was not complied with. It was put to his Honour that Al Shamry was distinguishable because the appellant had referred to the protection visa application form when asked about it by the Tribunal and said that the information in it was true and correct. Counsel for the Minister relied on Gray J's decision in M55. 34 It would seem that Jacobson J did not regard Gray J's decision in M55 as wrong. Rather, that case was to be distinguished on the basis that there the appellant had expressly adopted and put forward as part of his application to the Tribunal the earlier information whereas in NAZY the appellant had adopted the earlier information in answer to a question from the Tribunal. 36 Moore J (at [20]) did not accept that "by adopting the statement at the hearing before the Tribunal the flight information was transformed into information provided by the appellant in his application review". His Honour went on to say: "If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. However, it cannot be said, in this case, that the Tribunal acted in such a way." His Honour said that NAZY was correct. His Honour did not further explain the distinction between mere adoption and the fact of the adoption. I am not sure that I understand it. 37 Weinberg J said (at [157]): "The adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review." 38 Allsop J (at [219]) agreed with Moore J that the flight information was "information" within the meaning of s 424A(1) but held, contrary to Moore and Weinberg JJ, that such information was part of the reason for affirming the decision. His Honour did not deal expressly with the subs (3) point.
Case: SZCKD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [34] , [37]
Outcome: applied
In SZCKD [2006] FCA 451 the Tribunal relied in part on the absence of certain information from the applicant's protection visa application, which was referred to before the Tribunal. Graham J noted that the appellant's migration agent sent to the Tribunal a 31 page fax which included a statutory declaration made by him in the course of his application for a protection visa. His Honour said at [34] that the "inescapable conclusion" was that all of the information contained in the fax, which constituted the application for review as submitted to the Tribunal by the appellant's agent, constituted information that the appellant gave for the purpose of the application within the meaning of s 424A(3)(b). His Honour referred to the statements already mentioned from SZEEU and (at [37]) distinguished the case before him saying: "This case is quite different from one where in the course of a hearing before a Tribunal member an earlier statement was adopted. In this instance the information to which the Tribunal referred in its reasons was information derived from the documents which the appellant gave to the Tribunal for the purpose of the review application." (Emphasis in original) 44 In SZGGT [2006] FCA 435 , a decision handed down on the same day as SZCKD , the Tribunal had stated in its reasons that it had the Department's file before it and had considered its contents. In his letter in support of the application for review to the Tribunal the appellant, dealing with the reasons he had left China, said "As I explained before" and "I gave full explanations in my previous statement". Rares J rejected the Minister's argument that the incorporation by this reference was of everything which the appellant had put before the delegate, and not just so much of the material as related to the events surrounding his leaving China. His Honour said (at [36]) that when it is sought to say that a person "republished" something which had been provided at a different time, an objective assessment is called for. After reference to the concept of objective assessment in the law of defamation, contract, trade practices and passing off, his Honour concluded that a subjective criterion could not have been intended by Parliament in the case of s 424A. His Honour noted the earlier decision of SZDMJ [2005] FCA 1034 where Gyles J held that there was a "clear republication of original claims made in a declaration by the applicant as part of his application for review".
Case: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [36]
Outcome: discussed
In SZGGT [2006] FCA 435 , a decision handed down on the same day as SZCKD , the Tribunal had stated in its reasons that it had the Department's file before it and had considered its contents. In his letter in support of the application for review to the Tribunal the appellant, dealing with the reasons he had left China, said "As I explained before" and "I gave full explanations in my previous statement". Rares J rejected the Minister's argument that the incorporation by this reference was of everything which the appellant had put before the delegate, and not just so much of the material as related to the events surrounding his leaving China. His Honour said (at [36]) that when it is sought to say that a person "republished" something which had been provided at a different time, an objective assessment is called for. After reference to the concept of objective assessment in the law of defamation, contract, trade practices and passing off, his Honour concluded that a subjective criterion could not have been intended by Parliament in the case of s 424A. His Honour noted the earlier decision of SZDMJ [2005] FCA 1034 where Gyles J held that there was a "clear republication of original claims made in a declaration by the applicant as part of his application for review".
Case: SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
Outcome: cited
In SZGGT [2006] FCA 435 , a decision handed down on the same day as SZCKD , the Tribunal had stated in its reasons that it had the Department's file before it and had considered its contents. In his letter in support of the application for review to the Tribunal the appellant, dealing with the reasons he had left China, said "As I explained before" and "I gave full explanations in my previous statement". Rares J rejected the Minister's argument that the incorporation by this reference was of everything which the appellant had put before the delegate, and not just so much of the material as related to the events surrounding his leaving China. His Honour said (at [36]) that when it is sought to say that a person "republished" something which had been provided at a different time, an objective assessment is called for. After reference to the concept of objective assessment in the law of defamation, contract, trade practices and passing off, his Honour concluded that a subjective criterion could not have been intended by Parliament in the case of s 424A. His Honour noted the earlier decision of SZDMJ [2005] FCA 1034 where Gyles J held that there was a "clear republication of original claims made in a declaration by the applicant as part of his application for review".
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592
Outcome: discussed
Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [16] , [17]
Outcome: applied
I would not grant leave to raise this argument. There is no explanation for it not being raised before the Magistrate. In any event, it has no reasonable prospects of success. The Act imposes no obligation to make positive findings in accepting or rejecting claims: VSAF [2005] FCAFC 73 at [16] - [17] . In a situation like the present one where the Tribunal expresses doubts about the appellant's account of specific events, it is unreal to expect the Tribunal to go on and make positive findings as to what in fact did happen. 54 The appeal will be dismissed with costs. I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 6 July 2006 Counsel for the Appellant: Mr A Krohn Solicitors for the Appellant: Erskine Rodan &amp; Associates Counsel for the Respondent: Mr R Knowles Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 June 2006 Date of Judgment: 6 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/851.html
Case: NABE v Minister for Immigration and Multicultural Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: applied
The appellant also relied upon the following passages in the Full Court decision in NABE v Minister for Immigration and Multicultural Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] : Where the tribunal fails to make a finding on "...a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction... And at [63]: A failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 16 I am prepared to accept that discrimination was raised by the appellant but only in a very general and background way, and not so much as a claim which was a "substantial, clearly articulated argument relying upon established facts". I do not characterise, unlike the federal magistrate, the matter of discrimination as a claim which necessarily required the detailed treatment as sought by the appellant. The main focus of the claim was the real chance of persecution and fear of physical harm. The general discrimination complained of by the appellant was to lead to such physical harm. This is the gist of the complaint made by the appellant in his statutory declaration on 1 June 2004 when he declared: On my return back to Bangladesh, I have real chance of being persecuted because of my community profile. My life will be under threat. There is no safety and security of life in Bangladesh for an activist like me. I shall be arrested and put into jail in relation to the false cases. I have no future in Bangladesh. I shall be discriminated in every walks of my life. My life will be in jeopardy. Under these circumstances I firmly believe that my case has merit to be considered. 17 The question of general discrimination before the Tribunal arose because the appellant confirmed that he believed Buddhists were subject to general discrimination amounting to persecution in Bangladesh. The Tribunal said: The Applicant confirmed that he believed that Buddhists were subject to general discrimination amounting to persecution in Bangladesh. The Tribunal confirmed that the Applicant was an ethnic Bengali, and alerted him to independent information from sources such as the United States, United Kingdom, Amnesty International and Human Rights Watch which described particular problems for Bangladeshi Buddhists from the Chittagong Hill Tracks ('tribals'). These sources referred to discrimination against minority groups generally, but did not refer to any persecution of Bengali Buddhists. The Applicant said his village in particular was not a good place for Buddhists. There were Muslims and Buddhists living there, but Buddhist religious programs had been threatened.
Case: Applicant NAKB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 534
Outcome: distinguished
This is not the situation that confronted Spender J in SZGOP v Minister for Immigration and Citizenship [2007] FCA 836 or Tamberlin J in Applicant NAKB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 534 , where their Honours were dealing with a clearly articulated claim, and where their Honours could not find that the issues sought to be agitated were either dealt with generally or specifically in any part of the Tribunal's findings.
Case: SZGOP v Minister for Immigration and Citizenship [2007] FCA 836
Outcome: distinguished
This is not the situation that confronted Spender J in SZGOP v Minister for Immigration and Citizenship [2007] FCA 836 or Tamberlin J in Applicant NAKB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 534 , where their Honours were dealing with a clearly articulated claim, and where their Honours could not find that the issues sought to be agitated were either dealt with generally or specifically in any part of the Tribunal's findings.
Case: WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630
Outcome: applied
The principles of law were not in contention between the parties. In both the appellant's and the first respondent's written submissions, reference was made to the decision of the Full Court in WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630, which provides that an inference may be drawn that the Tribunal did not consider a particular issue if it fails to deal directly with that issue in its reasons: at [47]. However, the Full Court also observed: But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 21 Even if one treated the question of general discrimination as being a substantial, clearly articulated argument, as the Full Court cautioned in WAEE 75 ALD at [47], an inference that the Tribunal did not consider such a particular claim is "not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point".
Case: Arnotts Limited v Trade Practice Commission (No 1) (1989) 21 FCR 297
Outcome: referred to
The analogy which Bowen CJ drew with a prosecutor's obligations was doubted by Selway J in Australian Competition and Consumer Commission v McMahon Service Pty Limited [2004] FCA 353 at [21] . Nevertheless, TNT has been followed by a Full Court in Arnotts Limited v Trade Practice Commission (No 1) (1989) 21 FCR 297 at 302.
Case: Australian Competition &amp; Consumer Commission v FFE (2003) ATPR 41-967
Outcome: referred to
In my view it is unnecessary to decide where the line ought to be drawn if something more than physical authorship is required, because whatever approach is taken within the authorities to which I have referred the transcript was not prepared by an officer of ASIC. This approach also seems to be in accordance with the approach taken by Wilcox J in Australian Competition &amp; Consumer Commission v FFE (2003) ATPR 41-967 at [60] [61]. 24 Mr Stevenson SC, for ASIC, submitted that the words "prepared by" in section 12HB mean or include a document which the officer has caused to be prepared. I reject this approach to construction as inconsistent with the authorities to which I have referred. 25 I turn then to the question of whether the transcript "tends to establish" Citigroup's case. I have read the whole of the transcript in order to determine this question. In my opinion there is nothing in the document which can be said to support Citigroup's case, nor can it be said that there is anything in the statement that tends to impeach ASICs case. The most that can be said is that the transcript suggests lines of inquiry which may be of assistance to Citigroup in conducting its case. That does not answer the statutory test.
Case: Australian Competition &amp; Consumer Commission v Rural Press Ltd [1999] FCA 1847
Outcome: referred to
Selway J followed the decision of Mansfield J in Australian Competition &amp; Consumer Commission v Rural Press Ltd [1999] FCA 1847 ; (1999) 96 FCR 141, where the question of whether a document has been prepared was determined by inquiring whether it had been physically prepared by an officer of the Commission. Selway J followed this approach as one which was not a plainly wrong interpretation notwithstanding the fact that this approach can on occasions produce unusual results; see at [17]. 21 The transcript of examination of Mr Chatfield was produced to me for inspection in accordance with section 12HB(4) of the ASIC Act. The transcript records that it was produced by "ComputerReporters". It was signed by Mr Chatfield as an accurate record of the examination. 22 In my view the transcript was not prepared by an officer of ASIC. First, it was not physically prepared by ASIC. Thus, in accordance with the approach taken by Mansfield J and Selway J, it was not prepared in the sense required by the statute. Second, it cannot be said to have been drawn up by the officer in accordance with the approach to construction taken by Bowen CJ in TNT .
Case: Australian Competition and Consumer Commission v McMahon Service Pty Limited [2004] FCA 353
Outcome: referred to
The analogy which Bowen CJ drew with a prosecutor's obligations was doubted by Selway J in Australian Competition and Consumer Commission v McMahon Service Pty Limited [2004] FCA 353 at [21] . Nevertheless, TNT has been followed by a Full Court in Arnotts Limited v Trade Practice Commission (No 1) (1989) 21 FCR 297 at 302. 19 In McMahon an issue arose as to whether a witness statement, which was drafted by an officer of the ACCC, typed at the ACCC, and signed by the witness, was "prepared" by an officer of the Commission within the meaning of section 157 of the Trade Practices Act .
Case: Trade Practices Commission v TNT Management Pty Limited (1982) 39 ALR 665
Outcome: referred to
In Trade Practices Commission v TNT Management Pty Limited (1982) 39 ALR 665, Bowen CJ considered the construction and effect of section 157 of the Trade Practices Act 1974 which is relevantly in similar terms to section 12HB of the ASIC Act. 12 His Honour said at 670 that: "The intention disclosed by the wording of section 157... is that a corporation is to be given fair treatment, in the sense that it is to be given copies of documents which the Commission has and which would, speaking broadly, support the corporation's case." 13 His Honour compared these obligations with those placed upon a prosecutor. 14 The analogy which Bowen CJ drew with a prosecutor's obligations was doubted by Selway J in Australian Competition and Consumer Commission v McMahon Service Pty Limited [2004] FCA 353 at [21] . Nevertheless, TNT has been followed by a Full Court in Arnotts Limited v Trade Practice Commission (No 1) (1989) 21 FCR 297 at 302. 15 In TNT Bowen CJ said at 670 that the words "prepared by an officer of the Commission" refer to a document drawn up by the officer whether or not any particular contribution of ideas is evident in the contents of it. 16 His Honour said that "this appears to be the ordinary meaning of the word 'prepare' in relation to writings or documents. His Honour went on to say that: "if something more than physical authorship is required it is difficult to define where the line should be drawn". He observed that "[w]hatever test would have to be applied it would seem to lead to an awkward inquiry of the intellectual contribution of the officer". 17 His Honour then turned to the question of whether a document tends to establish the case. He said at 671 that in his opinion these words do not mean that the document must tend to place the case of the corporation beyond dispute. It is sufficient if the document supports the case of the corporation and so tends to establish the case. 18 However, a document which might suggest a line of inquiry which would be of assistance to a corporation in conducting its case did not, in his Honour's view, answer the necessary statutory description. His Honour said that he considered that: "section 157 should not be narrowly construed. If a document tends to impeach the plaintiff's case it tends to establish the defendant's case within the meaning of the section." 22 In my view the transcript was not prepared by an officer of ASIC. First, it was not physically prepared by ASIC. Thus, in accordance with the approach taken by Mansfield J and Selway J, it was not prepared in the sense required by the statute. Second, it cannot be said to have been drawn up by the officer in accordance with the approach to construction taken by Bowen CJ in TNT .
Case: ACTEW Corporation v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1
Outcome: cited
some respects, the availability of review under s 39B(1A)(c) of the Judiciary Act is wider, and in some respects narrower, than that available under the AD(JR) Act. What is important for present purposes is that the notion of a "matter ... arising under any laws made by the Parliament" in s 39B(1)(c) of the Judiciary Act is wider than that of a "decision ... made under an enactment" of s 5 of the AD(JR) Act. Reference may be made to such cases as LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 , Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864 ; (2000) 101 FCR 1 , and ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1 , for an indication of the breadth of the concept of a matter arising under any laws made by the Parliament.