mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Teoh v Minister for Immigration [1994] FCA 1017 ; (1994) 49 FCR 409
Outcome: applied
the event that I might conclude that there had been no compliance with r 3(2)(b), the appellant sought leave to amend the notice of appeal to the Federal Magistrates Court so as to raise the two questions set out at [24]. In Teoh v Minister for Immigration [1994] FCA 1017 ; (1994) 49 FCR 409 the Full Court held that s 28 of the Federal Court of Australia Act and Order 13 r 2(1) enable the Full Court to grant leave to amend a pleading, an application or other originating process. See in particular per Carr J at 428. I see no reason why that would not extend to permitting an amendment to the questions of law in an originating process, in this case the notice of appeal to this Court that, by transfer, was heard by the Magistrate from whom the present appeal comes. See Condell v Commissioner of Taxation [2007] FCAFC 44 at [14] per Gyles J with whom Kenny and Allsop JJ agreed.
Case: SCIA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 238
Outcome: distinguished
Minister appeared to assume that information was involved but submitted that the information identified in these particulars was not the reason or a part of the reason for affirming the decision to refuse to grant the appellant a protection visa. Of [57] of the Tribunal's reason it was said: 'This is no more than a finding that the information relating to the appellant's visit to India did not satisfy the Tribunal, to the requisite level, that the appellant feared persecution on Convention related grounds. It does not transform the information into the reason or part of the reason for the decision: SCIA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 238 per Allsop J at [12]; SZEZI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1195 per Allsop J at [29].' The authorities to which the Minister refers are distinguishable. In both cases the appellant had not attended the hearing before the Tribunal: SZEZI at [5]; SCIA at [5]. In each case the Tribunal proceeded to determine the applications upon the material before it, which included the respective protection visa applications: SZEZI at [7]; SCIA at [6]. In SZEZI Allsop J raised with counsel for the Minister the question of whether there had been a breach of s 424A in the circumstances. His Honour answered that question at [29]: 'On one view, it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b) , it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF [(2005) 89 ALD 242] I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.'
Case: SZEEU v Minister for Immigration [2006] FCAFC 2 ; (2006) 150 FCR 214 
Outcome: applied
an analysis of the Tribunal's reasoning process it appears that two of the reasons that the Tribunal did not reach the relevant state of satisfaction were: (1) its rejection of the appellant's claim that he had travelled to India to escape persecution; (2) the tendency of the evidence of his return seen in light of the localised nature of the persecution he claimed to have suffered to undermine his claim to have suffered it at all. There were other reasons why the Tribunal was not satisfied that the appellants would be subject to Convention persecution if they returned to Bangladesh. But the question is whether the information was a part, that is any part, of the reasoning process leading up to the Tribunal's failure to reach that requisite state of satisfaction: see SZEEU v Minister for Immigration [2006] FCAFC 2 ; (2006) 150 FCR 214 at [215] [216] per Allsop J; [164] [165] per Weinberg J. As Weinberg J said in that case (at [164]): 'Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play "a part" in its reasons for decision.' Allsop J was dealing with a very different situation in both of those cases. There the Tribunal's questions about the applicants' claims remained unanswered by virtue of their respective failures to attend the hearing. Here the questions were answered. The Tribunal evaluated those answers and, relevantly, rejected them. Moreover, in SZCIA his Honour expressed the view that the reasoning in SZEZI was in conformity with the approach of the Court in SZEEU : at [13] ]14]. I have referred to and applied that approach above.
Case: SZJFL v Minister for Immigration and Citizenship [2007] FMCA 421
Outcome: affirmed
This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal which had affirmed a decision of a delegate of the Minister to refuse the grant of a protection visa. Details of the appellant's application, the decision of the Tribunal, and the reasons of the Federal Magistrate are contained in the decision of the Federal Magistrate , SZJFL v Minister for Immigration [2007] FMCA 421 , which is available on the internet. 2 The appellant is a 43 year old female citizen of the People's Republic of China. Her claim for a protection visa was based on what was said to be a well founded fear of persecution as a member of the Falun Gong. 3 The Tribunal asked her a number of questions probing her account of involvement with Falun Gong and her travels to and from China. After the hearing and before making its decision the Tribunal wrote to the appellant in accordance with s 424A of the Migration Act 1958 (Cth). In its letter the Tribunal outlined inconsistencies between the original protection visa application and the evidence provided at the hearing. There was no response from the appellant.
Case: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28
Outcome: referred to
I should add that some of the submissions advanced on behalf of the applicant and some of the alleged questions of law would have been more appropriate in a general judicial review application than in an appeal on a question of law. I have remarked in other cases that this situation is unsatisfactory and unnecessary (eg Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 at 45 46). I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 22 March 2007 Counsel for the Applicant: Dr K Sant Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondent: Ms L Walker Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 and 27 October 2006 Date of Judgment: 22 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/404.html
Case: Luu v Renevier (1989) 91 ALR 39
Outcome: applied
The AAT stands in the shoes of the Department and is in precisely the same situation as the decision maker. The fact that, as a practical matter, it chooses to conduct quasi-adversarial proceedings and does not have available direct access to medical specialists for the purposes of investigation, does not change the nature of the function being performed by it. The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim. The decision maker is bound to use his or her best endeavours to assist the AAT to make its decision (s 33(1AA)). The AAT has inquisitorial powers and may exercise them where appropriate. (See, generally, McDonald v Director-General of Social Security (1984) 1 FCR 354.) It is not, of course, every case that will require such measures. In general, an applicant for a benefit must satisfy the decision maker of the necessary criteria. However, cases such as this may demand such an approach (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 170; Luu v Renevier (1989) 91 ALR 39 at 49 50). The AAT did not arrange investigations to test the validity of the speculation about each condition. It should have made a decision made on the material before it without taking account of hypothetical third party investigations.
Case: McDonald v Director-General of Social Security (1984) 1 FCR 354 
Outcome: followed
The AAT stands in the shoes of the Department and is in precisely the same situation as the decision maker. The fact that, as a practical matter, it chooses to conduct quasi-adversarial proceedings and does not have available direct access to medical specialists for the purposes of investigation, does not change the nature of the function being performed by it. The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim. The decision maker is bound to use his or her best endeavours to assist the AAT to make its decision (s 33(1AA)). The AAT has inquisitorial powers and may exercise them where appropriate. (See, generally, McDonald v Director-General of Social Security (1984) 1 FCR 354.) It is not, of course, every case that will require such measures. In general, an applicant for a benefit must satisfy the decision maker of the necessary criteria. However, cases such as this may demand such an approach (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 170; Luu v Renevier (1989) 91 ALR 39 at 49 50). The AAT did not arrange investigations to test the validity of the speculation about each condition. It should have made a decision made on the material before it without taking account of hypothetical third party investigations.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: applied
The AAT stands in the shoes of the Department and is in precisely the same situation as the decision maker. The fact that, as a practical matter, it chooses to conduct quasi-adversarial proceedings and does not have available direct access to medical specialists for the purposes of investigation, does not change the nature of the function being performed by it. The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim. The decision maker is bound to use his or her best endeavours to assist the AAT to make its decision (s 33(1AA)). The AAT has inquisitorial powers and may exercise them where appropriate. (See, generally, McDonald v Director-General of Social Security (1984) 1 FCR 354.) It is not, of course, every case that will require such measures. In general, an applicant for a benefit must satisfy the decision maker of the necessary criteria. However, cases such as this may demand such an approach (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 170; Luu v Renevier (1989) 91 ALR 39 at 49 50). The AAT did not arrange investigations to test the validity of the speculation about each condition. It should have made a decision made on the material before it without taking account of hypothetical third party investigations.
Case: Auspine Staff Superannuation Pty Ltd v Henderson [2006] FCA 1281
Outcome: cited
Furthermore it is accepted by this Court that the doctrine of procedural fairness is applicable to decisions made by the Superannuation Complaints Tribunal (cf Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356 and Auspine Staff Superannuation Pty Ltd v Henderson [2006] FCA 1281). So, for example, in Employers First Branson J said at [69]: The obligation on the Tribunal to afford procedural fairness to the parties to a review means that it may not make a determination adverse to the interests of a party to that review without giving that party a reasonable opportunity to make written submissions to the Tribunal on the approach that the Tribunal is contemplating.
Case: Clements v Independent Advisory Committee [2003] FCAFC 143
Outcome: followed
Appeals from the Tribunal to the Federal Court can only be on questions of law, and the authorities have conflicted as to whether denial of procedural fairness raises a question of law within the ambit of s 46 of the Act . This question has now been settled by the Full Court in Clements v Independent Advisory Committee [2003] FCAFC 143 at [8] where Gray ACJ and North J said: this Court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law. 17 If the applicant establishes the Tribunal denied the applicant procedural fairness in making its determination, notwithstanding discretionary decisions to the grant of relief, the denial of procedural fairness will be sufficient to raise a question of law.
Case: Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356
Outcome: followed
Furthermore it is accepted by this Court that the doctrine of procedural fairness is applicable to decisions made by the Superannuation Complaints Tribunal (cf Employers First v Tolhurst Capital Ltd [2005] FCA 616 ; (2005) 143 FCR 356 and Auspine Staff Superannuation Pty Ltd v Henderson [2006] FCA 1281). So, for example, in Employers First Branson J said at [69]: The obligation on the Tribunal to afford procedural fairness to the parties to a review means that it may not make a determination adverse to the interests of a party to that review without giving that party a reasonable opportunity to make written submissions to the Tribunal on the approach that the Tribunal is contemplating.
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
His Honour's decision was made before the judgment of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. which held that decisions under the Migration Act were amenable to judicial review for jurisdictional error. An appeal from his Honour's decision to the Full Court was allowed on 20 May 2003 NAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 94. The decision of the High Court in Plaintiff S157/2002 had been delivered between the time at which Wilcox J delivered his judgment and the time at which the Full Court delivered its judgment.
Case: NAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 94
Outcome: cited
His Honour's decision was made before the judgment of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. which held that decisions under the Migration Act were amenable to judicial review for jurisdictional error. An appeal from his Honour's decision to the Full Court was allowed on 20 May 2003 NAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 94. The decision of the High Court in Plaintiff S157/2002 had been delivered between the time at which Wilcox J delivered his judgment and the time at which the Full Court delivered its judgment.
Case: Minister for Immigration &amp; Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: cited
In any event, s 422B of the Act applies. The analysis of the breadth of application of s 422B was dealt with by Heerey J in VXDC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [22] to [31]. His Honour's reasons were adopted and his conclusion upheld in Minister for Immigration &amp; Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [70]; SZCIJ v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 62 at [8] and NBKT v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 195 at [85] .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Outcome: cited
French J concluded in WAJR at [56] that it may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. This distinction was also drawn by the Full Court in SZAJL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 217 at [34] and is consistent with the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49].
Case: NBKT v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 195
Outcome: followed
In any event, s 422B of the Act applies. The analysis of the breadth of application of s 422B was dealt with by Heerey J in VXDC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [22] to [31]. His Honour's reasons were adopted and his conclusion upheld in Minister for Immigration &amp; Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [70]; SZCIJ v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 62 at [8] and NBKT v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 195 at [85] .
Case: SZAJL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 217
Outcome: cited
French J concluded in WAJR at [56] that it may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. This distinction was also drawn by the Full Court in SZAJL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 217 at [34] and is consistent with the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49].
Case: SZCIJ v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 62
Outcome: followed
In any event, s 422B of the Act applies. The analysis of the breadth of application of s 422B was dealt with by Heerey J in VXDC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [22] to [31]. His Honour's reasons were adopted and his conclusion upheld in Minister for Immigration &amp; Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [70]; SZCIJ v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 62 at [8] and NBKT v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 195 at [85] .
Case: WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511
Outcome: cited
A distinction has been drawn between circumstances where the Tribunal actually makes a finding of forgery and where the Tribunal does not ( WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [52] and following). In WAJR , French J considered the approach to be taken when findings of forgery are made and the Tribunal did not put to the applicant the basis upon which the authenticity of the documents might be called into question. His Honour noted that two Full Court decisions, WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, were relevant to that inquiry. 14 The Full Court observed in WACO that, where a finding does not turn upon the credibility of the applicant and there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries, it would be inherently unfair for a decision maker to conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it (at [54]). In WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, there was no finding by the Tribunal that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.
Case: WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597
Outcome: cited
A distinction has been drawn between circumstances where the Tribunal actually makes a finding of forgery and where the Tribunal does not ( WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [52] and following). In WAJR , French J considered the approach to be taken when findings of forgery are made and the Tribunal did not put to the applicant the basis upon which the authenticity of the documents might be called into question. His Honour noted that two Full Court decisions, WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, were relevant to that inquiry. 14 The Full Court observed in WACO that, where a finding does not turn upon the credibility of the applicant and there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries, it would be inherently unfair for a decision maker to conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it (at [54]). In WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, there was no finding by the Tribunal that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.
Case: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624
Outcome: considered
A distinction has been drawn between circumstances where the Tribunal actually makes a finding of forgery and where the Tribunal does not ( WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [52] and following). In WAJR , French J considered the approach to be taken when findings of forgery are made and the Tribunal did not put to the applicant the basis upon which the authenticity of the documents might be called into question. His Honour noted that two Full Court decisions, WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, were relevant to that inquiry. 15 French J concluded in WAJR at [56] that it may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. This distinction was also drawn by the Full Court in SZAJL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 217 at [34] and is consistent with the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49].