mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779 , 100 ALD 52
Outcome: cited
Even if there had been a failure on the part of the Tribunal to consider the hardship which the decision would have upon him, such a failure would not have amounted to a failure to consider a matter which the Tribunal was " bound " to take into account, and any such failure would not have amounted to jurisdictional error. A comparable argument was advanced and rejected in Cockrell v Minister for Immigration &amp; Citizenship [2008] FCAFC 160. The trial judge had there rejected the argument as follows: [53] I do not think the Tribunal member was bound to consider hardship to the applicant himself. It is possible that in any event he did so when considering the best interests of [the Applicant's son], but even if he did not, he did not err in law in not doing so. ...: Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779 , 100 ALD 52. An appeal was dismissed. Gray, Finn and Mansfield JJ relevantly concluded: [31] Counsel for the appellant did not refer the Court to any other document, or transcript of evidence, in which any evidence or submission of hardship to the appellant was put before the Tribunal. Any evidence and submissions in support of the proposition that the appellant would suffer hardship is therefore vague, and is usually found in the context of assertions of hardship to others, particularly [his son]. It is difficult to see how the Tribunal could come to the conclusion that hardship to the appellant was a relevant factor, appropriate for it to take into account under cl 2.17 of Direction No 21. The specific mention in cl 2.17(c) of hardship to immediate family members lawfully resident in Australia tends to make it doubtful that hardship to the person cancellation of whose visa is being considered would be regarded as a relevant matter, at least in most cases. It must be assumed that the cancellation of a visa of a person who opposes that cancellation would cause that person hardship in any event. Unless a case of specific hardship were put before the decision-maker, it can hardly be expected that the decision-maker would take into account such a general consideration. To the extent to which hardship to the appellant by separation from [his son] is implicit in the cancellation of the appellant's visa, it is important that Direction No 21 only makes specific reference (in the circumstances of this case) to hardship to [his son]. It is at least implicit in the Tribunal's finding that the prospects of the appellant and [his son] developing a close relationship were doubtful that the Tribunal's view was that the appellant's removal to the United States would make no significant difference to his relationship with [his son], and therefore to any detriment he suffered from the absence of a such a relationship.
Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Outcome: followed
The task to be undertaken by the Tribunal in the present proceeding -- as in other applications coming before it -- was essentially a consideration of the evidence adduced and the submissions advanced. Its task was to resolve the case sought to be advanced by the parties in a manner consistent with determining the " correct or preferable decision ". That task was one of determining the correct or preferable decision on the basis of the material then before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Bowen CJ and Deane J there held (at 419): The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. These observations are oft cited with approval: eg, Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. See also: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J. 17 In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.
Case: Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430
Outcome: cited
The task to be undertaken by the Tribunal in the present proceeding -- as in other applications coming before it -- was essentially a consideration of the evidence adduced and the submissions advanced. Its task was to resolve the case sought to be advanced by the parties in a manner consistent with determining the " correct or preferable decision ". That task was one of determining the correct or preferable decision on the basis of the material then before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Bowen CJ and Deane J there held (at 419): The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. These observations are oft cited with approval: eg, Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. See also: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.
Case: Green v Minister for Immigration &amp; Citizenship [2008] FCA 125
Outcome: cited
Although the decision of the Tribunal was not susceptible of appeal, original jurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal's decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution . In order to obtain relief in this Court's original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration &amp; Citizenship [2008] FCAFC 160 at [4] . The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration &amp; Citizenship [2008] FCA 102 ; see also: Green v Minister for Immigration &amp; Citizenship [2008] FCA 125 at [21] [29], [2008] FCA 125 ; 100 ALD 346) ; nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise.
Case: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 , 183 ALR 188
Outcome: applied
When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ.
Case: McKeown v Repatriation Commission (1995) 39 ALD 30
Outcome: applied
In determining the " correct or preferable " decision the Tribunal must also be satisfied that there is " enough material " before it on a matter of central importance to the decision to be reached ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t] he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F &amp; F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
Construing the Notice of Appeal as an application for judicial review, however, only confronted the Applicant with two further difficulties, namely: a) whether or not the Tribunal did in fact fail to consider the impact of the decision upon the Applicant and the hardship which would be occasioned to him if the delegate's decision was affirmed; and b) whether or not the Tribunal was, in any event, " bound " to take such a consideration into account. A failure to take a consideration into account only gives rise to a reviewable error if the consideration was one which a decision-maker was " bound " to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39 41 per Mason J. 9 The simple fact is that the Tribunal did consider the hardship which would be occasioned to the Applicant if the decision cancelling his visa was to be affirmed and it did make findings which referred to the evidence. The Applicant was given an opportunity for the merits of his position to be considered. Regrettably for the Applicant, the Administrative Appeals Tribunal resolved the merits of his claims adversely to him. 10 Even if there had been a failure to consider the impact upon the Applicant of a decision affirming the cancellation of his visa, it is not considered that any jurisdictional error would in any event have been committed by the Tribunal. 42 Similarly, in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 , 101 ALD 454 Tamberlin J concluded: [13] The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the minister, would show jurisdictional error in her decision. The minister clearly addressed both the issue of hardship generally and each of the topics to which the direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1981) 162 CLR 24 ; 66 ALR 299 ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30. North and Mansfield JJ agreed.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 , 128 FCR 553
Outcome: followed
When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ.
Case: MZXLB v Minister for Immigration &amp; Citizenship [2007] FCA 1588
Outcome: cited
But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration &amp; Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration &amp; Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".
Case: MZXMG v Minister for Immigration &amp; Citizenship [2007] FCA 1884
Outcome: followed
But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration &amp; Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration &amp; Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1
Outcome: followed
But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration &amp; Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration &amp; Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".
Case: NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 , 189 ALR 293
Outcome: cited
In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.
Case: Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509
Outcome: followed
Although an unrepresented applicant is relevantly in no different position, both courts and tribunals are conscious of the difficulties confronting unrepresented litigants and are conscious of ensuring that any hearing is fair and just: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [26] per Finn J. See also: Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509. Brennan, Deane, Toohey, Gaudron and McHugh JJ there observed: A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. See also: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [51] [54], [2006] FCA 943 ; 91 ALD 362 at 372 per Cowdroy J.
Case: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 , 91 ALD 362
Outcome: cited
Although an unrepresented applicant is relevantly in no different position, both courts and tribunals are conscious of the difficulties confronting unrepresented litigants and are conscious of ensuring that any hearing is fair and just: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [26] per Finn J. See also: Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509. Brennan, Deane, Toohey, Gaudron and McHugh JJ there observed: A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. See also: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [51] [54], [2006] FCA 943 ; 91 ALD 362 at 372 per Cowdroy J.
Case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: followed
But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration &amp; Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration &amp; Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".