mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 
Outcome: applied
The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29] - [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.
Case: NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24
Outcome: cited
Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15] - [16] (per Weinberg J).
Case: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088
Outcome: cited
Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15] - [16] (per Weinberg J).
Case: Phillips v Commissioner for Superannuation [2005] FCAFC 2
Outcome: cited
The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29] - [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 11 Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15] - [16] (per Weinberg J).
Case: Rana v Australian Federal Police [2006] FCAFC 169 
Outcome: cited
In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342.
Case: Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: cited
In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342.
Case: Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: applied
In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342.
Case: Servos v Repatriation Commission (1995) 56 FCR 377
Outcome: cited
The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29] - [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.
Case: STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 
Outcome: cited
Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15] - [16] (per Weinberg J).
Case: SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627
Outcome: cited
The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29] - [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.
Case: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: cited
The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29] - [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.
Case: Steutel v Kimple Pty Ltd [2005] VSCA 312
Outcome: cited
I was referred to a passage from the reasons of Nettle JA in Steutel v Kimple Pty Ltd [2005] VSCA 312 which seems to me to be apposite to this case. At [43] his Honour said: 'But as Chernov JA makes plain, conduct is only misleading or deceptive if it is capable of inducing error. Whether it is misleading or deceptive is therefore a question of fact to be determined in the context of the known facts and circumstances. In the end, conduct cannot be characterised as misleading or deceptive unless it conveys a misrepresentation. And if the circumstances of its communication, and the state of knowledge of the recipient, are such as to prevent misrepresentation, it matters not that in other circumstances the result could have been different.' 178 In each proceeding the application must be dismissed with costs. 179 No substantive attempt was made by 1800 and the Jacobsons to press their amended cross-claims against Bannerhey and the Grettons or against the Hortons, apart from four paragraphs at the conclusion of the respondents' written submissions, and even they were confined to the alleged undischarged obligations of the applicants to pay the amounts to the respective Territory Promotion Funds pursuant to clause 14.16.1 of the respective Master Licence Agreements - $50,000 in the case of Bannerhey and $100,000 in the case of the Hortons. The applicants both submitted that the cross-claims were baseless given the respondents misleading and deceptive conduct. Effectively, there was no other submission.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
For the reasons set out below I am not satisfied that this is a case in which departure from the ordinary rule according to which a notice of appeal is to be filed and served within a time period prescribed by O 52 r 15(1)(a) is justified (see Jess v Scott (1986) 12 FCR 187). Indeed, I am satisfied that it would be contrary to the public interest for any discretionary relief to be granted to this applicant for the purpose of allowing him to pursue further the application made by him for a protection visa. 4 The applicant arrived in Australia from the People's Republic of China ('the PRC') on 17 May 2000. He applied for a protection visa, using a name which he now acknowledges is not his true name, on an application form which he signed in Chinese characters on 12 November 2000. The application contains an acknowledgment that the applicant had received help completing the form from a registered migration agent, Pricilla International Co Pty Ltd ('Pricilla'). Accompanying the applicant's application for a protection visa is a further document, again signed by the applicant in Chinese characters, by which he appointed Pricilla to act as his agent in dealings with the Department of Immigration and Ethnic Affairs ('the Department'). 5 Annexed to the application is a three page statement in English ('the Statement') which is also signed by the applicant in Chinese characters. It is reasonable to assume that an officer or employee of Pricilla had some involvement in the preparation and completion of all of the documents associated with the applicant's application for a protection visa, including the Statement. It is necessary to refer in some detail below to aspects of the Statement.
Case: NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134
Outcome: cited
The draft notice of appeal upon which the applicant, by his counsel, indicated that he would rely should he be granted the extension of time sought by him raised three grounds of appeal. The first proposed ground of appeal alleges that the Tribunal constructively failed to exercise its jurisdiction in relation to a critical element of the applicant's claim. The particulars of this ground reveal that it is solely concerned with the alleged failure of the Tribunal to understand the case of the applicant with respect to the issue of his passport. The applicant is seeking an extension of time within which to institute an appeal from the judgment of the Federal Magistrates Court. This ground of appeal must therefore be understood as an assertion that the Federal Magistrates Court erred in not finding that the Tribunal erred in the way alleged. As it was not argued before the Federal Magistrates Court that the Tribunal erred in this regard, the applicant's ability to rely on this ground of appeal is dependent on a finding by this Court that it is expedient in the interests of justice to allow him to rely on the ground (see NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134). 18 The second proposed ground of appeal raised by the draft notice of appeal alleges that the Tribunal erred in a manner amounting to jurisdictional error in the way in which it gave consideration to whether the applicant would face a real risk of persecution as an ordinary practitioner of Falun Gong should he be required to return to the PRC. As in the case of the first of the proposed grounds of appeal, this proposed ground of appeal must be understood as an assertion that the Federal Magistrates Court erred in not finding that the Tribunal erred in the way alleged. 19 The third proposed ground of appeal raised by the draft notice of appeal contends that the Federal Magistrate erred in declining to consider an affidavit filed by the applicant in the Federal Magistrates Court containing information about the applicant's association with the Falun Gong movement in Australia. The Federal Magistrate refused to consider the affidavit on the basis that the evidence contained in it had not been before the Tribunal.