mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 , 92 FCR 355
Outcome: distinguished
The " Particulars " provided in relation to the first proposed Ground are but an impermissible invitation to revisit the merits of the decision as made by the Tribunal. Those " Particulars " thus state that "[t] he Tribunal failed to appreciate " the matters thereafter set forth. The reliance sought to be placed by the Applicants upon V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 , 92 FCR 355 is misplaced. Views were there expressed as to what constituted " political opinion " for the purposes of art 1A(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. And the obligation of the Tribunal to make findings on material questions of fact imposed by s 430(1) of the 1958 Act was also recounted. But, in the present proceeding, there could not be said to be any non-compliance by the Tribunal with s 430(1). It made its findings on those matters material to its decision. 19 Parts of the first proposed Ground of Appeal are, in any event, in direct conflict with the manner in which the claim was advanced before the Refugee Review Tribunal and the evidence then given. The first proposed Ground thus states in part as follows: ... During the hearing the applicant stated that when his former business partner wanted to overtake his business from him as he was a Hindu, he complained to the police and the police did not protect him and asked for bribes. But, before the Tribunal, his evidence was that he did not complain to the police. The Tribunal thus recounted as follows the evidence then given: ... Asked why he didn't report the threats and beating to the police, the applicant claimed that the police wouldn't do anything unless they were bribed. The Tribunal put to the applicant that it was not possible to know for sure that the police would not act on his behalf without a bribe unless he actually reported the incidents to them. The applicant claimed that he had experience with the traffic police and knows that they ask for money for any reason and will beat you if you do not pay them. Not only is there a divergence between the manner in which the proceeding was conducted before the Federal Magistrates Court and this Court, there is also a divergence between the factual account now sought to be advanced for determination by this Court and the factual account advanced before the Tribunal. In the absence of an explanation, leave to appeal to raise such a ground should not be granted.
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225
Outcome: followed
The question of whether or not leave to appeal should be given is, of course, governed by well established principles, namely that an applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and also must show that substantial injustice would result from a refusal of leave to appeal ( Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 231, [29] per McHugh, Kirby and Callinan JJ). 9 Before proceeding to consider the issue of whether the application was filed in time, it is also necessary to consider the other bases upon which, if an appeal were initiated, the applicant would seek to argue that the trial judge erred in failing to set aside the decision of the Tribunal. The draft notice of appeal submitted by the applicant with his affidavit on 7 February 2006 asserts that: (a) the Tribunal failed, in effect, properly to consider his case; and (b) the Tribunal refused to accept that the applicant had a well founded fear of persecution. 10 His Honour recorded in his judgment that the applicant was a citizen of China and he had arrived in Australia on 29 October 1997. The applicant had given evidence before the Tribunal on 25 February 1999 as to his assertions of persecution. In essence, the applicant claimed to have been a practicing Catholic for over twenty years and that he feared persecution were he to return to China. He claimed to have been part of an underground church in his town in 1987. He also claimed in his written application to the Tribunal to have studied the Bible. The Tribunal did not accept his claims for reasons which do not reveal any jurisdictional or other error. 11 The Tribunal, in its detailed reasons, set out an exchange with the applicant in which it questioned him about fundamental and well known aspects of Catholicism and the Christian faith. For example, the Tribunal recorded the following questions and answers in its reasons: 'Tribunal: In the Catholic faith what books in the Bible tell us about Jesus? Applicant: I can't remember Tribunal: What are the Ten Commandments? Applicant: I don't know. Tribunal: Can you name any of the Ten Commandments? Applicant: Can't remember, is it when you cannot eat meat?' 12 The Tribunal found that it was not satisfied with the applicant's credibility and that there were a number of inconsistencies in his evidence about various matters including his inability to answer basic questions about the Bible, the Catholic Church, Catholic teaching and Catholic practices. It gave the applicant until 8 March 1999 to address in writing those inconsistencies that had been referred to during the hearing. The Tribunal found that at the hearing the applicant was unable to give any explanation for a number of the inconsistencies and his explanations for the rest were not reasonable. It found 'in his written submission to the Tribunal the applicant has not addressed these inconsistencies.'
Case: Coal &amp; Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194
Outcome: followed
Ordinarily, if no additional evidence is admitted under section 27 of the Federal Court of Australia Act 1976 (Cth) or Federal Court Rules Order 52 r 36 an appeal and there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision maker. As Gleeson CJ, Gaudron and Hayne JJ noted in Coal &amp; Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203-204 [14] : 'That is because statutory provisions, conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error (see CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 201-202 [111] per McHugh, Gummow and Callinan JJ).'
Case: Minister for Immigration v Singh [2000] FCA 377 ; (2000) 98 FCR 77
Outcome: considered
The evidence before the Federal Magistrates Court was that on 11 March 1999 the Tribunal sent a letter to the applicant at his address notifying him of the Tribunal's decision to affirm the decision of the delegate which enclosed a copy of the Tribunal's decisions and reasons. The letter informed the applicant that he had 28 days within which to appeal to the Federal Court. It noted that if the letter were posted he would be taken to have received it seven days after the date of the letter. (Presumably this was in reliance upon reg 5.03 of the Migration Regulations which so provided. However, in Minister for Immigration v Singh [2000] FCA 377 ; (2000) 98 FCR 77 at 91 [51] O'Connor and Mansfield JJ held that regulation to be invalid to the extent it sought to impose such time constraints.) 23 Regulation 5.03 made provision for deeming a document to be served 7 days after its date. It also permitted the document to be sent on the seventh day so that, in fact, it could not have been received until after the seventh day. A Full Court of this Court held that Regulation 5.03 was ultra vires the regulation making power ( Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77).
Case: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76
Outcome: cited
Making all allowances that can be made for a person who has no legal training and does not speak English, the draft notice of appeal does not indicate any error of his Honour in refusing to grant the applicant the relief sought in the Federal Magistrates Court. Rather, the draft notice of appeal concentrates on what are said to be errors as to the merits of the applicant's claim for a protection visa which concentrate on findings of fact, including the findings as to the applicant's credibility. There is no jurisdictional error made by a decision maker in the position of the Tribunal simply because it found facts in a way which may be erroneous. Its jurisdiction was to find the facts and for that purpose it could do so rightly or wrongly: Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 390-394 per Dixon J, with whom Evatt and McTiernan JJ agreed; NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37] .
Case: Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7 ; (1938) 59 CLR 369
Outcome: cited
Making all allowances that can be made for a person who has no legal training and does not speak English, the draft notice of appeal does not indicate any error of his Honour in refusing to grant the applicant the relief sought in the Federal Magistrates Court. Rather, the draft notice of appeal concentrates on what are said to be errors as to the merits of the applicant's claim for a protection visa which concentrate on findings of fact, including the findings as to the applicant's credibility. There is no jurisdictional error made by a decision maker in the position of the Tribunal simply because it found facts in a way which may be erroneous. Its jurisdiction was to find the facts and for that purpose it could do so rightly or wrongly: Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 390-394 per Dixon J, with whom Evatt and McTiernan JJ agreed; NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37] .
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: followed
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 212 [211] (Kirby J agreeing at 203 [174] and see also McHugh J to the same effect at 185 [84] )Hayne J in considering whether prerogative relief could be refused by the Court in cases of jurisdictional error, said: 'There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way.' 35 Here, an unexplained delay of over six years between the handing down of the decision and the commencement of the proceedings seeking judicial review appears to me to dictate that the interests of justice would not be served by a grant of leave to appeal. The applicant did not put evidence before his Honour or this Court, to support the fact that he had not been notified of the decision of the Tribunal, contrary to the statement in his application to the Court below, until he learnt of it in 2005. That explanation, had it been made on oath could have been tested and his Honour could have made findings about it.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at pages 272-275, in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, one finds a definitive exposition of the nature of the decision for which the Migration Act then and presently provides in relation to the granting of a protection visa. In that joint judgment, at pages 274 and 275, the following passage appears: it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded on a real risk of persecution. This is the 'decision' for which provision is made by the Act. 11 As was stated in the joint judgment in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. Authorities at ultimate appellate level, and Wu Shan Liang at page 275 to 276 is an example, have emphasised remarks made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119, in respect of the bases upon which a satisfaction based decision is amenable to judicial review. One basis adverted to by Gibbs J is that: if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.
Case: Minister for Immigration and Multicultural Affairs v Eshetu (1998/1999) [1999] HCA 21 ; 197 CLR 611
Outcome: followed
Later, in Minister for Immigration and Multicultural Affairs v Eshetu (1998/1999) [1999] HCA 21 ; 197 CLR 611 at 647, paragraph 119 Gummow J remarked of s 65(1) of the Migration Act that that section: imposed on the Minister an obligation to grant or to refuse to grant a visa, rather than a power to be exercised at discretion. The Minister's satisfaction was an anterior matter, being a component of the condition precedent to the discharge of the obligation to grant or refuse the visa. 10 The references in the passages which I have quoted to the Minister, apply equally to the Tribunal, which under the Migration Act sits in the place of the Minister when conducting its merits review function.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
As was stated in the joint judgment in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. Authorities at ultimate appellate level, and Wu Shan Liang at page 275 to 276 is an example, have emphasised remarks made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119, in respect of the bases upon which a satisfaction based decision is amenable to judicial review. One basis adverted to by Gibbs J is that: if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. 12 Having referred to this particular passage from Buck v Bavone in Eshetu's case, Gummow J, at page 654 para 137, observed of it that it was: consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. 13 His Honour added: It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. 14 It is with these principles in mind that I approach consideration of ground 2 in the appeal. When one looks to the findings and reasons of the Tribunal, see pages 86 and 87 of the Appeal Book, one sees that the Tribunal came not to be satisfied that the Appellant was a person to whom Australia owed protection obligations under the Refugee Convention because of a view reached by the Tribunal as to the Appellant's credibility in relation to the claim which she made. The Tribunal referred to a lack of apparent knowledge of Falun Gong practice and belief on the part of the Appellant during her evidence at the hearing conducted by the Tribunal. 15 The Tribunal also referred to the Appellant's ability freely to travel to and from Singapore to the People's Republic of China on two and perhaps even three occasions. The Tribunal referred to this travel pattern as being inconsistent with a fear of persecution if the Appellant returned to China.
Case: Attorney General (New South Wales) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
I respectfully agree with everything stated by the Federal Magistrate in the passage which I have quoted. It is very important in a case like this for Magistrates, and in turn Judges on appeal, firmly to bear in mind the limits of judicial review. A principled restraint is called for. That proposition was stated and has frequently been emphasised thereafter in Attorney General (New South Wales) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36, per Brennan J, as his Honour then was. A hearing before the Tribunal in respect of an application for a protection visa is not an examination in theology. Nonetheless, in this particular case and bearing in mind the limits of reasonableness as a ground of challenge, and also inferences reasonably open in relation to the Appellant's travel pattern, the conclusions reached by the Tribunal were open. I discern no error in law in the Federal Magistrates Court so concluding. 18 That being the case, the appeal must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 November 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Sparke Helmore Date of Hearing: 12 November 2008 Date of Judgment: 12 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1708.html
Case: Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533
Outcome: cited
observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40] , 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.
Case: Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: applied
a general proposition, an administrative decision-maker may fall into jurisdictional error where he fails to consider relevant material: Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51] , [2002] HCA 11 ; 209 CLR 597 at 614 to 615 per Gaudron and Gummow JJ (McHugh J agreeing at [63]).
Case: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 , 194 ALR 244
Outcome: considered
failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.
Case: Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700
Outcome: cited
observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40] , 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.