mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 
Outcome: referred to
Grounds 3 and 4 sufficiently dispose of the appeal. It is therefore unnecessary for me to consider the fifth ground. This is that the satisfaction of the decision-maker was based on the findings of fact which were not supported by probative material or logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [37] [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] [37]; Eshetu at [131] [145].
Case: MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 
Outcome: applied
As Weinberg J said in MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] , the Tribunal was bound to consider each incident of alleged persecution, not merely in isolation but also in conjunction with the others. An act that might not amount to persecutory conduct involving serious harm when viewed in isolation may do so when considered in its full context. 55 In my opinion, the essential error in the Tribunal's decision is that it failed to consider the appellant's claims in their totality. In doing so, it failed to complete the exercise of its jurisdiction. 56 This error appears from a careful, but not over-zealous reading of the Tribunal's findings and reasons set out at pp 13 and 14 of its decision. 67 It is true that "overall, based on the evidence" the Tribunal was satisfied that the appellant's fear was not well-founded. But the difficulty with this statement is that it appears after the Tribunal had considered each step in the claim in isolation and without considering the impact of state involvement in the conduct: MZWPD at [72] [73].
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: applied
It follows in my view that the Tribunal failed to consider a substantial aspect or integer of the appellant's case that was sufficiently plain on the facts that were established: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] [57]. 69 This amounted to a constructive failure to exercise the Tribunal's jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; NABE at [48] [49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].
Case: NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 
Outcome: applied
It is well established that in determining whether the persecutory conduct claimed by an applicant amounts to serious harm, the Tribunal is under a duty to consider the "totality of the case put forward": NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [54] [62]; VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [62]; Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 at [31] . In doing so, it must consider each integer of the claims: VTAO at [62]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 
Outcome: referred to
Grounds 3 and 4 sufficiently dispose of the appeal. It is therefore unnecessary for me to consider the fifth ground. This is that the satisfaction of the decision-maker was based on the findings of fact which were not supported by probative material or logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [37] [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] [37]; Eshetu at [131] [145].
Case: SZFDE v Minister for Immigration &amp; Citizenship (2007) 81 ALJR 1401 
Outcome: referred to
The effect of the appellant's submission in the present proceeding is that the Tribunal failed to identify the third, fourth and fifth reasons for rejecting the appellant's claims, which I have set out at [12] to [14], as issues arising on the review. The appellant submits that this has the effect of stultifying the operation of the legislative scheme to provide natural justice embodied in Part 7 , Division 4 of the Act: SZFDE v Minister for Immigration &amp; Citizenship (2007) 81 ALJR 1401 at [32] and [49]. 33 It is an agreed fact between the parties that at the hearing before the Tribunal on 17 November 2006, the Tribunal member did not ask the appellant whether: &#8226; he had an ongoing interest in pursuing the compensation claim after his release from detention; &#8226; he avoided protest activities or the pursuit of his compensation claim after his release from detention because he feared harm from the authorities; &#8226; his relatives had been arrested or had experienced any harm for lodging an appeal in respect of his compensation claim. 34 These "issues" correspond to the third, fourth and fifth reasons given by the Tribunal for rejecting the appellant's claim. It may therefore be accepted that the Tribunal considered them to be dispositive of the application.
Case: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 
Outcome: referred to
What the Tribunal was required to do to complete the exercise of its jurisdiction was to apply the "real chance test" that was stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. It was for the decision-maker to determine whether the past events relied upon by the appellant gave rise to a likelihood of future harm: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 at [3] . 73 As Gleeson CJ and Kirby J said in VBAO at [3], the decision-maker is required to consider the likelihood of future persecution that involves serious harm, and one instance of this is a threat to a person's life or liberty. 74 Although the Tribunal came to the view that there was no real likelihood of such a threat, it did so without considering all the integers of the claim. It is well-established that this vitiates the purported exercise of the power. 75 I propose therefore to grant leave to raise grounds 3 and 4 and to allow the appeal on that basis.
Case: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 
Outcome: applied
It is well established that in determining whether the persecutory conduct claimed by an applicant amounts to serious harm, the Tribunal is under a duty to consider the "totality of the case put forward": NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [54] [62]; VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [62]; Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 at [31] . In doing so, it must consider each integer of the claims: VTAO at [62]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 
Outcome: referred to
Without departing from the principles stated by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1, and by a Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424, a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 commented on the practice of raising arguments for the first time on appeals in migration matters. 29 The approach stated by the Court in VUAX at [48] is that leave may be granted if a point is advanced "which clearly has merit" and the respondent suffers "no real prejudice". An adequate explanation is also required for the failure to take the point at first instance. 30 Here, the appellant is represented for the first time by counsel. The Minister does not point to any prejudice other than costs. The essential question is whether the grounds have merit. I will deal with that when addressing each of the grounds. 51 I do not consider that there is sufficient merit in the second ground of appeal to grant leave in accordance with the approach taken in VUAX . Nevertheless, the question of whether the Tribunal's finding in relation to the confiscation of the land was flawed falls for consideration under grounds 3 and 4. 52 Grounds 3 and 4 may be considered together. Mr Mantziaris put three submissions in support of them: first, that the Tribunal failed to consider the appellant's claims in their totality; second, that the Tribunal looked only at the question of past conduct without considering whether it gave rise to a real chance of persecution in the future; third, that the Tribunal erred in law in inferring that the appellant's post 2003 inactivity meant that he had no fear of persecution.
Case: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Outcome: referred to
This amounted to a constructive failure to exercise the Tribunal's jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; NABE at [48] [49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].
Case: Lamb v Hog's Breath Company Pty Ltd (No 1) [2007] FCA 49
Outcome: cited
Upon the return of the motion on 30 January 2007 I ordered security for costs and dismissed the motion so far as it sought transfer of the proceedings: Lamb v Hog's Breath Company Pty Ltd (No 1) [2007] FCA 49 . I reserved judgment on the strike out motion until today. 7 For the reasons that follow, in my opinion, the statement of claim should be struck out and a substituted statement of claim filed. I propose also to give the respondents the opportunity to provide basic information about their respective roles in what I refer to as the "Hog's Breath" group and the ways in which the so-called Hog's Breath Works and/or the registered trade marks have been applied. I will not direct that they do so. In the event that they decline to do so and the applicant files a substituted statement of claim, adequately pleaded having regard to the information it has available to it, then I will entertain applications for specific discovery and/or leave to interrogate so that the statement of claim may be further reviewed prior to the filing of a defence. 8 The applicant is a citizen of the United States of America. He says that he is and was at all material times a prominent and well-known artist in the United States and is, and was at all material times "the owner of copyright in the 'Wave Hog Work'". A copy of the work is depicted in Schedule A to the application filed in these proceedings.
Case: Abbotto v Australian Electoral Commission (1997) 44 ALD 481
Outcome: cited
3 stands in a different position. The order as sought is an order " that the election be declared null and void ", namely the election to which the petition relates &#8212; the by-election held in Lyne on 6 September 2008. It was not disputed that the Petitioner was enrolled and entitled to vote in that by-election. Although reference was made by the Petitioner in submissions to an election in another electorate, the Mayo electorate, no question arises as to declaring void the result in any election other than that of Lyne. It was not disputed that the Petitioner was entitled to claim the relief he sought in order (3): Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34 ; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641 ; Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 Abbotto v Australian Electoral Commission (1997) 44 ALD 481. See also: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [8] to [9] per Kiefel J.
Case: Bryant v Commonwealth of Australia (unreported, FCA, Tamberlin J, NG 1084 of 1998, 20 October 1998)
Outcome: cited
that Part, s 353(1) provides that " [t]he validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns ... ". Section 354(1) establishes the High Court of Australia as the Court of Disputed Returns. Jurisdiction to determine any dispute as to the validity of any election or return is vested exclusively in the Court of Disputed Returns: Bryant v Commonwealth of Australia (unreported, FCA, Tamberlin J, NG 1084 of 1998, 20 October 1998). Section 355 sets forth the " requisites " of a petition as follows: Requisites of petition Subject to section 357, every petition disputing an election or return in this Part called the petition shall: (a) set out the facts relied on to invalidate the election or return; (aa) subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief; (b) contain a prayer asking for the relief the petitioner claims to be entitled to; (c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution or section 44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment; (d) be attested by 2 witnesses whose occupations and addresses are stated; (e) be filed in the Registry of the High Court within 40 days after: (i) if the polling day for the election in dispute is not the polling day for any other election &#8212; the return of the writ for the election; or (ii) if the polling day for the election in dispute is also the polling day for another election or other elections &#8212; the return of whichever of the writs for the election in dispute and that other election or those other elections is returned last; or (iii) if the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution is in dispute &#8212; the notification of that choice or appointment.
Case: Free v Kelly [1996] HCA 42 ; (1996) 185 CLR 296
Outcome: cited
commenting upon s 359, Brennan CJ in Free v Kelly [1996] HCA 42 ; (1996) 185 CLR 296 at 305 stated that: The Commission may be represented and heard under s 359 in at least four categories of case: cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election; cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions; cases where the Commission adopts a partisan stance supporting one party or another; and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition. It may be appropriate to make an order for or against the Commission in the first three categories of case, but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest. The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings. Being incidental to the proper performance of its statutory functions, the cost of being represented and heard ought properly to be borne as a cost of the Commission's administration. This is such a case. Expressing, as I do, appreciation of the considerable assistance that the Commission offered &#8212; not least in the preparation of an agreed statement of facts &#8212; it is appropriate to make no order with respect to the costs of the Commission. When the proceeding was before Gummow J, the Australian Electoral Commission sought to intervene in order to support the relief claimed by the Corporation that the petition be dismissed. His Honour, when making orders on 17 February 2009, ordered that the Commission be added as the Third Respondent to the proceeding. When seeking leave, the Commission foreshadowed that it sought to support the Corporation's contention that the petition fails to comply with s 355 and should be dismissed. It wished " to be available to assist the Court on any constitutional issues that might arise in the proceedings ". Section 359 further provides that where the Commission is given leave to enter an appearance, it " shall be deemed to be a party respondent to the petition ". As a " party respondent " it has all the entitlements of a respondent, including the prospect of an order for costs being made in its favour if successful. The role undertaken by the Commission in the present proceeding went beyond the mere task of making " appropriate reference to the Act and to authority in order to assist the Court to determine a petition ". The task undertaken was to support the relief sought by the Corporation; it adopted a " partisan stance " &#8212; to employ the language of Brennan CJ.
Case: Hudson v Entsch [2005] FCA 300
Outcome: cited
there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10] , [1999] HCA 61 ; 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed: [12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but ... that is how the matter should be understood. See also: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J.
Case: Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627
Outcome: cited
even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J.
Case: Kelly v Campbell [2002] FCA 1125
Outcome: cited
355(a) requires a petition to " set out the facts relied on " and s 355(aa) further provides that (subject to s 358(2)) those facts are to be set out " with sufficient particularity to identify the specific matter or matters on which the petitioner relies ... ". These two requirements are directed to two different objectives &#8212; one objective is to require a petitioner to " set out the facts relied on "; the other objective is to ensure that from those facts " the specific matter or matters on which the petitioner relies " may be identified " with sufficient particularity ". The " question whether ... there are sufficient facts set out in " the petition is a question " distinct from the question whether there has been sufficient particularisation of the specific matters relied on to justify the relief sought, as required by s355(aa) ": Kelly v Campbell [2002] FCA 1125 at [15] per Madgwick J. The " very minimum assertion necessary to constitute a fact which will 'invalidate [an] election or return' for the purposes of s 355(a) of the Act is one raising a matter or matters by which 'the election was likely to be affected' ": Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225 per Gaudron J. See also: Smith v Australian Electoral Commission [2008] FCA 953 at [9] and [14], 104 ALD 395 at 397 and 398. For the purposes of s 362(3) and the phrase " likely to be affected ", in Kelly v Campbell [2002] FCA 1125 , Madgwick J observed: [20] ... It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word "likely" should be understood. The present petition has not provided that " very minimum assertion " in respect to any fact or facts that may be discerned.