mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27
Outcome: referred to
The respondent says that the appellant did not argue before the Tribunal that the result of the election might lead to a greater risk of persecution in the future and that it would be an unreasonable standard to require the Tribunal to consider this claim in the absence of argument. The respondent refers to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [58] - [63] which sets out the extent of the obligation upon a Tribunal to consider unarticulated claims. At [58] the Court observed that: 'It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; 199 ALR 265; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the tribunal.' The respondent says that the significance of the forthcoming election was not raised squarely as an issue by the material before the Tribunal.
Case: SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: followed
The appellant acknowledges that he was represented by Counsel in the hearing before the Federal Magistrates Court, and that the points now sought to be raised by the amended notice of appeal were not raised before that Court. However, the appellant argues that the effect of s 424A of the Migration Act was uncertain at the time of the hearing before the Federal Magistrates Court. The appellant says when the Federal Magistrates Court hearing took place, no decision of the Federal Court had been given which upheld a challenge under s 424A based upon the combined effects of the decision in SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and the decision in Al-Shamry . Further, the appellant says that leave was granted in a similar situation in each of the five appeals under consideration in SZEEU. 37 Counsel for the respondent says that the law was not uncertain at the time of the hearing before the Federal Magistrates Court. Al-Shamry was handed down in July 2001 and SAAP was handed down in May 2005, well before the hearing in the Federal Magistrates Court in August 2005. He submits that the Court is limited under s 24 of the Federal Court of Australia Act 1976 (Cth) to hear appeals on the ground of errors in a judgment of the Federal Magistrates Court.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: followed
In this case, however, the reasons themselves directly point to the conclusion that the Tribunal relied upon information from the application form, in circumstances where that information had not been provided by the appellant orally at the hearing. The Tribunal did not provide this information to the appellant in writing as required by s 424A(2)(a) and s 441A of the Migration Act . It follows that, in accordance with the decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , the Tribunal did not comply with the requirements of s 424A. 36 The appellant acknowledges that he was represented by Counsel in the hearing before the Federal Magistrates Court, and that the points now sought to be raised by the amended notice of appeal were not raised before that Court. However, the appellant argues that the effect of s 424A of the Migration Act was uncertain at the time of the hearing before the Federal Magistrates Court. The appellant says when the Federal Magistrates Court hearing took place, no decision of the Federal Court had been given which upheld a challenge under s 424A based upon the combined effects of the decision in SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and the decision in Al-Shamry . Further, the appellant says that leave was granted in a similar situation in each of the five appeals under consideration in SZEEU. 38 I am satisfied that the law relating to s 424A of the Migration Act had not been settled when the hearing in the Federal Magistrates Court took place. Since the hearing, the law has been clarified by the decision in SZEEU . The first issue relied upon by the appellant in the amended notice of appeal relies specifically upon the law as decided in SZEEU . I accept there would be some prejudice to the respondent by reason of the continuation of the proceedings if leave were granted. However if leave were not granted, the prejudice to the appellant, who would face removal to Pakistan without having had his application for asylum determined according to correct legal principles, would be greater. 39 For the reasons given above, I consider that one aspect of the appellant's claim under s 424A would succeed if leave were granted. Accordingly, I consider that leave with respect to the first ground of appeal in the amended notice of appeal should be granted.
Case: SZBFL v Refugee Review Tribunal [2005] FCA 869
Outcome: cited
The first respondent submitted that no grounds of appeal had been made out and that the appeal should be dismissed with costs. In an outline of submissions filed on 2 December 2005, the first respondent submitted that it was open to Riethmuller FM to refuse the appellant's application for an adjournment of the hearing in the Federal Magistrates Court for the reasons given by his Honour. I agree. Riethmuller FM was entitled to take the view that the most appropriate order in the interests of justice, bearing in mind the matters relied on by the appellant, the previous history of the proceedings, and the needs of other litigants and the Court, was to decline to adjourn the hearing: see SZBFL v Refugee Review Tribunal [2005] FCA 869 at [8] - [10] ; Applicant MZQAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801 at [5] ; and NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [22] - [26] . As to the substantive contentions which the appellant advanced in his written contentions, Riethmuller FM was also entitled to find that there had been no failure by the Tribunal to take relevant facts into consideration, and that the Tribunal had not erred by taking irrelevant facts into consideration. Further, his Honour was entitled to find that there was nothing to support the contentions that the decision was made in bad faith or that the Tribunal's decision was unreasonable: see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] - [13] , [16]-[19].
Case: Applicant MZQAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801
Outcome: cited
The first respondent submitted that no grounds of appeal had been made out and that the appeal should be dismissed with costs. In an outline of submissions filed on 2 December 2005, the first respondent submitted that it was open to Riethmuller FM to refuse the appellant's application for an adjournment of the hearing in the Federal Magistrates Court for the reasons given by his Honour. I agree. Riethmuller FM was entitled to take the view that the most appropriate order in the interests of justice, bearing in mind the matters relied on by the appellant, the previous history of the proceedings, and the needs of other litigants and the Court, was to decline to adjourn the hearing: see SZBFL v Refugee Review Tribunal [2005] FCA 869 at [8] - [10] ; Applicant MZQAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801 at [5] ; and NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [22] - [26] . As to the substantive contentions which the appellant advanced in his written contentions, Riethmuller FM was also entitled to find that there had been no failure by the Tribunal to take relevant facts into consideration, and that the Tribunal had not erred by taking irrelevant facts into consideration. Further, his Honour was entitled to find that there was nothing to support the contentions that the decision was made in bad faith or that the Tribunal's decision was unreasonable: see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] - [13] , [16]-[19].
Case: NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17
Outcome: cited
The first respondent submitted that no grounds of appeal had been made out and that the appeal should be dismissed with costs. In an outline of submissions filed on 2 December 2005, the first respondent submitted that it was open to Riethmuller FM to refuse the appellant's application for an adjournment of the hearing in the Federal Magistrates Court for the reasons given by his Honour. I agree. Riethmuller FM was entitled to take the view that the most appropriate order in the interests of justice, bearing in mind the matters relied on by the appellant, the previous history of the proceedings, and the needs of other litigants and the Court, was to decline to adjourn the hearing: see SZBFL v Refugee Review Tribunal [2005] FCA 869 at [8] - [10] ; Applicant MZQAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801 at [5] ; and NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [22] - [26] . As to the substantive contentions which the appellant advanced in his written contentions, Riethmuller FM was also entitled to find that there had been no failure by the Tribunal to take relevant facts into consideration, and that the Tribunal had not erred by taking irrelevant facts into consideration. Further, his Honour was entitled to find that there was nothing to support the contentions that the decision was made in bad faith or that the Tribunal's decision was unreasonable: see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] - [13] , [16]-[19].
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
The first respondent submitted that no grounds of appeal had been made out and that the appeal should be dismissed with costs. In an outline of submissions filed on 2 December 2005, the first respondent submitted that it was open to Riethmuller FM to refuse the appellant's application for an adjournment of the hearing in the Federal Magistrates Court for the reasons given by his Honour. I agree. Riethmuller FM was entitled to take the view that the most appropriate order in the interests of justice, bearing in mind the matters relied on by the appellant, the previous history of the proceedings, and the needs of other litigants and the Court, was to decline to adjourn the hearing: see SZBFL v Refugee Review Tribunal [2005] FCA 869 at [8] - [10] ; Applicant MZQAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801 at [5] ; and NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [22] - [26] . As to the substantive contentions which the appellant advanced in his written contentions, Riethmuller FM was also entitled to find that there had been no failure by the Tribunal to take relevant facts into consideration, and that the Tribunal had not erred by taking irrelevant facts into consideration. Further, his Honour was entitled to find that there was nothing to support the contentions that the decision was made in bad faith or that the Tribunal's decision was unreasonable: see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] - [13] , [16]-[19].
Case: Applicant NABD of 2002 v Minister for Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29
Outcome: cited
As his Honour pointed out, the Tribunal was required to determine whether the appellant had a well-founded fear of persecution for a Convention reason, based upon the appellant's particular claims. It was not required to make a determination based on the overall economic and social situation of the lower level castes in India in general: see Applicant NABD of 2002 v Minister for Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [158] - [160] . On the evidence before it, the Tribunal was not satisfied that the appellant belonged to the scheduled tribe. More particularly, it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. Both these findings were open to the Tribunal: see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] ; and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] .
Case: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Outcome: cited
As his Honour pointed out, the Tribunal was required to determine whether the appellant had a well-founded fear of persecution for a Convention reason, based upon the appellant's particular claims. It was not required to make a determination based on the overall economic and social situation of the lower level castes in India in general: see Applicant NABD of 2002 v Minister for Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [158] - [160] . On the evidence before it, the Tribunal was not satisfied that the appellant belonged to the scheduled tribe. More particularly, it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. Both these findings were open to the Tribunal: see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] ; and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] .
Case: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Outcome: cited
As his Honour pointed out, the Tribunal was required to determine whether the appellant had a well-founded fear of persecution for a Convention reason, based upon the appellant's particular claims. It was not required to make a determination based on the overall economic and social situation of the lower level castes in India in general: see Applicant NABD of 2002 v Minister for Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [158] - [160] . On the evidence before it, the Tribunal was not satisfied that the appellant belonged to the scheduled tribe. More particularly, it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. Both these findings were open to the Tribunal: see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] ; and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] .
Case: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59
Outcome: discussed
I should say something briefly about the Bank's submission that this Court can order either indemnity costs or solicitor and own client costs as alternatives to party and party costs. The distinction between indemnity costs and solicitor and own client costs has been recognised in England for many years. See EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 at 64 65 per Megarry VC where his Lordship referred to a number of relevant authorities including, in particular, Giles v Randall [1915] 1 KB 290.
Case: Giles v Randall [1915] 1 KB 290
Outcome: referred to
I should say something briefly about the Bank's submission that this Court can order either indemnity costs or solicitor and own client costs as alternatives to party and party costs. The distinction between indemnity costs and solicitor and own client costs has been recognised in England for many years. See EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 at 64 65 per Megarry VC where his Lordship referred to a number of relevant authorities including, in particular, Giles v Randall [1915] 1 KB 290.
Case: Thors v Weekes (1989) 92 ALR 131 
Outcome: discussed
In Colgate-Palmolive Sheppard J alluded briefly (at 233) to the distinction between indemnity costs and solicitor and own client costs. In Thors v Weekes (1989) 92 ALR 131 Gummow J, while a member of this Court, stated (at 152): "The general power of the court to award costs under s 43 of the Federal Court of Australia Act permits the court in an appropriate case to order that costs be paid on a "solicitor and client" basis: Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177; 71 ALR 287. This power will not, as that case illustrates, be exercised in every case where fraud is alleged and not proved; usually some further factor must be present such as dishonesty or the irrelevance of the allegations to the issues between the parties. No doubt in an appropriate case costs may even be awarded on an indemnity basis: Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354."
Case: Amadio Pty Ltd v Henderson (1998) 81 FCR 149 
Outcome: discussed
In Amadio Pty Ltd v Henderson (1998) 81 FCR 149, an appeal from Heerey J, the Full Court noted that his Honour had ordered certain respondents to pay costs on an indemnity basis, and others to pay costs on a solicitor and own client basis only. The Full Court assumed, without discussion, that both types of costs orders were available in this Court. 21 In G E Dal Pont, Law of Costs (Butterworths, 2003) the learned author notes that there is conflicting authority in Australia as to whether indemnity costs differ from solicitor and own client costs. He observes that New South Wales, the Northern Territory, and Queensland have specifically removed any power there may once have been to order costs on a solicitor and own client basis, retaining only the power to order costs on either a party and party or an indemnity basis. However, the question whether solicitor and own client costs can be ordered as an alternative to indemnity costs remains live in all other jurisdictions.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 
Outcome: referred to
In this Court, some judges have spoken of indemnity costs and solicitor and own client costs interchangeably: see, for example, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 per Woodward J at 400 401 and connect.com.au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348 per Emmett J at 360 361.
Case: connect.com.au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348 
Outcome: referred to
In this Court, some judges have spoken of indemnity costs and solicitor and own client costs interchangeably: see, for example, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 per Woodward J at 400 401 and connect.com.au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348 per Emmett J at 360 361.
Case: Chertsey Urban District Council v Mixnam's Properties Ltd [1965] AC 735
Outcome: cited
there appear to be differences between the Australian and English approaches to the doctrines of unreasonableness, certain observations of Diplock LJ in Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 237-238 have been referred to in the authorities in this country and are of assistance: "The various special grounds upon which subordinate legislation has sometimes been said to be void&#8212;for example, because it is unreasonable; because it is uncertain; because it is repugnant to the general law or to some other statute&#8212;can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'." (Citation omitted.) On appeal, these observations were apparently approved: Chertsey Urban District Council v Mixnam's Properties Ltd [1965] AC 735.
Case: Clements v Bull [1953] HCA 61 ; (1953) 88 CLR 572
Outcome: discussed
Clements v Bull [1953] HCA 61 ; (1953) 88 CLR 572 , a regulation made under the Melbourne Harbour Trust Act 1928 (Vic) was challenged, and one of the matters discussed by the High Court was the doctrine of unreasonableness. Williams ACJ and Kitto J made the point that a regulation may produce unreasonable results in certain circumstances and yet still be valid, providing it is really legislation for the purposes authorised. Their Honours also made the point that to say delegated legislation is invalid on the ground that no reasonable mind could justify it by reference to the purposes of the power is only another way of stating the conclusion that there is no real connection with the purposes of the power.
Case: De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502
Outcome: cited
summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169. Before leaving this brief review of the cases, I refer to the illuminating discussions of the relevant principles in De Silva v Minister for Immigration and Multicultural Affairs and Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299 at 331-343 [99] - [160] per Weinberg J. See also Pearce D and Argument S, Delegated Legislation in Australia (3 rd ed, LexisNexis Butterworths, 2005) at 253-267 [21.1]-[21.19]; Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4 th ed, Lawbook Co, 2009) at 378.