mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
More generally, I should observe that the application before the Tribunal failed essentially because the Tribunal did not accept the appellant's claims, having regard to the findings which it made concerning his credibility. Credibility findings are the function of the primary decision-maker, par excellence, as McHugh J said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 [67] . On appeal from a decision of the Federal Magistrates Court, this Court is not required to embark upon a re-hearing of the facts or the evidence heard by the Tribunal: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] .
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
An application for an extension of time was filed on 11 May 2007. Pursuant to O 52 r 15(2), the time limit may be extended for "special reasons". In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said at 195: "...the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 12 The first applicant has sought to explain the minor delay in filing the notice of appeal. If this were all, I should be disposed to grant the extension that he seeks. Indeed, the first respondent does not object to the extension of the time for filing a notice of appeal. This is not, however, all. This is a case where the prospects of success on the appeal are insufficient to warrant the grant of an extension of time. 13 The applicants' purported notice of appeal filed on 27 April 2007 records the following grounds: 1. His Honour erred in finding that the Refugee Review Tribunal considered whether the applicant was at risk of persecution because of his political associations. 2. His Honour erred in finding that the Refugee Review Tribunal's decision was not affected by jurisdictional error. 3. Further grounds and particulars to be provided upon provision of legal advice which is pending." As will be seen, the notice was vague and did not specify any grounds with particularity. 14 In written submissions filed on 24 July 2007, counsel for the applicants sought to make good this defect by raising the following grounds of appeal: 1. The Tribunal erred in failing to take into account relevant considerations; 2. The Tribunal breached s 424A of the Act; 3. The Tribunal breached common law natural justice obligations; and 4. The Tribunal failed to consider one of the integers of the applicants' case. 15 In the following consideration, I address each of these matters and others mentioned at the hearing.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCA 70
Outcome: referred to
I have also found it unnecessary to consider an affidavit sworn by Pamela Anne Summers on 30 July 2007. The first respondent faced difficulties in seeking to rely on it. The affidavit was not in evidence in the Federal Magistrates Court, although, according to the first respondent, this point was not taken below. I doubt that the first respondent's reliance on s 79 of the Evidence Act 1995 (Cth) was sustainable. I doubt that Ms Summers' familiarity with the practice and procedures of the Tribunal would constitute "specialised knowledge" upon which the opinion she gives can be said to be wholly or substantially based for the purposes of this provision: compare Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCA 70 at [106] - [107] per Black CJ, Emmett and Middleton JJ. The affidavit was not formally filed until the hearing, although, according to the first respondent, this was the result of the applicants' tardiness in filing their submissions. Ultimately, the first respondent did not press the tender of the affidavit, although counsel outlined a case for its admissibility, in the terms indicated.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: referred to
At bottom, the gravamen of the applicants' complaint at the hearing was that the country information before the Tribunal should have led the Tribunal to conclude that the first applicant had a political profile that would have attracted the Chinese authorities' adverse attention if he returned to China. This is in essence to challenge the merits of the Tribunal's determination that the country information supported the contrary findings. This challenge, even if made out, would not support a finding of jurisdictional error. It is the Tribunal's responsibility to identify the country information upon which it rests its decision and to determine the weight to be given the various items of country information. This is not a concern of a Court on judicial review: compare NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
Further, it does not follow from the fact that the Tribunal made findings contrary to the first applicant's case, without specifically explaining why it preferred some information to other, that the Tribunal failed to consider the matters on which the first applicant relied. The law does not require the Tribunal to refute all items of evidence that are contrary to its findings of material fact: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 per McHugh J and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 593 per Kirby J.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
Further, it does not follow from the fact that the Tribunal made findings contrary to the first applicant's case, without specifically explaining why it preferred some information to other, that the Tribunal failed to consider the matters on which the first applicant relied. The law does not require the Tribunal to refute all items of evidence that are contrary to its findings of material fact: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 per McHugh J and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 593 per Kirby J.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
This evidence clearly comes within s 424A(3)(b) of the Act. By virtue of this provision, s 424A does not apply to information that the review applicant gave for the purpose of the application to the Tribunal. Further, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, Finn and Stone JJ made it plain at 477 that the word 'information' "does not encompass the Tribunal's subjective appraisals, thought processes or determinations...nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps". 32 The Tribunal also noted that the first applicant's evidence in his post-hearing submissions did not "correspond to the profile that [he] presented at the hearing or to the period that [he] has been in Australia". This evidence too comes within the exception in s 424A(3)(b). Finally, the Tribunal noted that: "...the applicant gave contradictory information at the hearing about his employment since his arrival in Australia. The Tribunal also notes the applicant's evidence that he did not lodge a protection visa application until eight years after his arrival because the Australian authorities do not publicise the success of applications. However, having regard to the above findings, the Tribunal need not reach a concluded view on this evidence." Again, it is plain enough that the exception in s 424A(3)(b) would apply and, in any event, this contradictory information did not play a part in the Tribunal's decision. 33 It seems, therefore, that to the extent that the Tribunal relied on inconsistencies in the first applicant's evidence, these inconsistencies arose from the applicant's evidence at the hearing and his submissions to the Tribunal. This material was plainly given by him to the Tribunal for the purpose of its review. Accordingly, s 424A was not engaged.
Case: Applicant S105/2003 v Minister for Immigration &amp; Anor [2006] FMCA 125
Outcome: referred to
This is an appeal from the judgment of Scarlett FM delivered on 16 January 2006. There is a long background to the present proceedings which I shall summarise briefly. The full history is set out in the judgment of Scarlett FM: see Applicant S105/2003 v Minister for Immigration &amp; Anor [2006] FMCA 125 ; and in the earlier judgment of Sackville J of 23 May 2002, reported as Applicant NADI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 649.
Case: Applicant NADI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 649
Outcome: referred to
This is an appeal from the judgment of Scarlett FM delivered on 16 January 2006. There is a long background to the present proceedings which I shall summarise briefly. The full history is set out in the judgment of Scarlett FM: see Applicant S105/2003 v Minister for Immigration &amp; Anor [2006] FMCA 125 ; and in the earlier judgment of Sackville J of 23 May 2002, reported as Applicant NADI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 649.
Case: NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 ; (2003) 134 FCR 377
Outcome: cited
The decision under appeal in the proceedings before me is the decision of the Federal Magistrates Court on the remitted application for an order nisi . The Federal Magistrate dismissed the application on 16 January 2006. It may be that the true character of the application has the consequence that the Federal Magistrate's decision was an interlocutory decision: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 ; (2003) 134 FCR 377 at 378 [3] . However, this point was not raised and I will proceed on the footing that the Federal Magistrate made a final decision which is the subject of this appeal.
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
An appeal to this Court is in the nature of a re-hearing, but the right of appeal exists to correct error by the Federal Magistrate. The burden lies on the appellant to demonstrate that the judgment under appeal is the consequence of some legal, factual or discretionary error: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] . 8 The grounds raised before the Federal Magistrate were, with one exception, identical to the grounds raised in the proceedings before Sackville J. The new ground was that the Tribunal was obliged to consider, and had failed to consider, the possibility that the Bangladesh Nationalist Party ('BNP') might lose power in Bangladesh and that in such an eventuality, the appellant would be at risk of persecution if he were to return to Bangladesh. 9 The Federal Magistrate held that in respect of all of the grounds agitated before Sackville J, other than the new ground, a res judicata or issue estoppel applied which prevented the appellant from re-arguing the grounds that had been rejected by Sackville J. In my opinion, this finding by the Federal Magistrate was correct.
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722
Outcome: cited
The Federal Magistrate observed that the new ground had not been specifically raised in the earlier proceedings before Sackville J. However, the Federal Magistrate found that if the applicant wished to rely on such a ground, it should have been raised in those earlier proceedings. He added that there was no evidence of any special circumstance as to why it was not raised in those earlier proceedings or why it should now be permitted to be raised: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65 ; and VWZG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1018.
Case: S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65
Outcome: cited
The Federal Magistrate observed that the new ground had not been specifically raised in the earlier proceedings before Sackville J. However, the Federal Magistrate found that if the applicant wished to rely on such a ground, it should have been raised in those earlier proceedings. He added that there was no evidence of any special circumstance as to why it was not raised in those earlier proceedings or why it should now be permitted to be raised: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65 ; and VWZG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1018.
Case: VWZG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1018
Outcome: cited
The Federal Magistrate observed that the new ground had not been specifically raised in the earlier proceedings before Sackville J. However, the Federal Magistrate found that if the applicant wished to rely on such a ground, it should have been raised in those earlier proceedings. He added that there was no evidence of any special circumstance as to why it was not raised in those earlier proceedings or why it should now be permitted to be raised: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65 ; and VWZG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1018.
Case: Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
This complaint goes to a purely factual issue. To paraphrase McHugh J in Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 [67] , this issue was a function of the primary decision-maker par excellence. This argument cannot support the appeal and it does not indicate any error on the part of the Tribunal that is capable of supporting this appeal. 15 Secondly, the appellant's written submissions contended that the Tribunal erroneously relied upon country information that contained the following comment: 'The above independent evidence shows that people in the applicant's position can rely on the courts and on the authorities in regard to any false charges laid against him.' The appellant points to extracts from a report of the US State Department discussing the extent to which violence is a feature of politics in Bangladesh. Again, this complaint does not support the appeal. It goes to a factual matter lying within the province of the Tribunal. 16 The third ground raised in the written submissions was, in substance, the new ground I have already addressed, namely that the Tribunal did not consider the eventuality that the current regime of law and order in Bangladesh might collapse and that the old regime under which he claimed persecution might be reinstated. I have already rejected this argument as a basis for the appeal.
Case: Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297
Outcome: cited
The Court has power to grant an extension of time for the lodging of an appeal against a decision of the Tribunal: see s 44(2A) of the AAT Act . A factor which will weigh heavily against the exercise of a discretion to enlarge time within which a proceeding may be commenced is that a proposed appeal has no reasonable prospects of success: see Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297 at [17] . 8 I have formed the view that the application for an extension of time should be refused because the proposed appeal is bound to fail and the granting of an extension would serve no useful purpose. 9 Section 44(1) of the AAT Act provides for a right of appeal "on a question of law, from any decision of the Tribunal ..." Order 53 r 3(2)(b) of the Federal Court Rules requires the notice of appeal is to state "the question or questions of law to be raised on the appeal ...".
Case: TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law is not merely a qualifying condition to ground an appeal under s 44 , " but also the subject matter of the appeal itself ... ". (Emphasis added).
Case: Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: cited
It is, therefore, essential in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. Ms Luck has failed to identify any such question of law: see Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 325.
Case: Director-General of Social Services v Chaney (1980) 31 ALR 571
Outcome: cited
Section 44(1) only provides for an appeal from a "decision" of the Tribunal. In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, "an appeal under s 44(1) of the [AAT] Act lies only from a decision from the Tribunal which constitutes the effective decision or determination of the application for review." His Honour held that, in the normal case, "such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act." 13 The Tribunal in the present case has done no more than give directions with a view to readying Ms Luck's application for hearing. In no sense are the directions from which she seeks to appeal final or determinative of her application. They do not, therefore, constitute decisions for the purposes of s 44. It follows that she has no right of appeal under that section. 14 In her amended notice of appeal Ms Luck also seeks review of certain procedural decisions said to have been made by the Senior Member and an Assistant Registrar of the Tribunal under the Administrative Decisions (Judicial) Review Act 1977 (Cth) ("the ADJR Act "). 15 The relevant decisions and conduct of the Senior Member are said to be the decision that the respondent to the proceedings should be the Chief Executive Officer of Centrelink and that Centrelink should file relevant documents with the Tribunal together with a statement of its reasons for its decision and his conduct in giving these directions. 16 The decisions attributed to the Assistant Registrar were directions, said to have been given by her, as to the appropriate person to deal with any contacts made by Ms Luck with the Tribunal.
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: cited
Ms Luck does not identify any relevant decisions within the meaning of the ADJR Act : see ss 3 , 5 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-8. None of the "decisions" to which she refers is a "determination for which provision is made by or under a statute, one that ... is substantive, final and operative." If anything, the Senior Member's directions might be characterised as conduct, that is, "action taken, rather than a decision made, for the purpose of a reviewable decision." In giving a direction that Ms Luck should only deal with a nominated officer the Assistant Registrar did nothing for the purpose of her or the Tribunal making a reviewable decision. Ms Luck does not identify any grounds on which a judicial review application might reasonably be expected to succeed in relation to the orders made by the Senior Member. She does no more than recite all of the grounds to be found in ss 5 and 6 of the ADJR Act without making any attempt to relate any particular ground to the conduct of the Senior Member. 22 Ms Luck's applications for enlargements of time, are, therefore, refused. 23 Ms Luck is able to apply to the Tribunal for any further directions which she considers need to be made to facilitate the hearing of her application. In particular she can invite the Tribunal to make an order identifying the relevant decision as that deemed to have been made on 3 July 2005. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 10 October 2008 Applicant was self represented Counsel for the Respondent: Mr Philip Ginnane Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 October 2008 Date of Judgment: 8 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1506.html
Case: SZEPI v Minister for Immigration &amp; Multicultural Indigenous Affairs &amp; Anor [2006] FMCA 153
Outcome: cited
In this appeal, the Appellant contends that Federal Magistrate Nicholls erred in dismissing ( SZEPI v Minister for Immigration &amp; Multicultural Indigenous Affairs &amp; Anor [2006] FMCA 153) on 23 February 2006 an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') delivered on 21 September 2004 affirming a decision of the Minister's delegate refusing the Appellant's application for a protection visa. 2 The Appellant relies upon three grounds. Firstly, a contention that 'the judgment of Federal Magistrate Nicholls is absolutely incorrect'. Secondly, that Federal Magistrate Nicholls erred in failing to find an error of law on the part of the Tribunal constituting a jurisdictional error and a failure to find a procedural error in the Tribunal's decision constituting an absence of natural justice. Neither of the two limbs of this second ground are particularised. Thirdly, that Federal Magistrate Nicholls erred in failing to find that the Tribunal had failed to comply with its obligations pursuant to ss 424A(1) and 425 of the Migration Act 1958 (Cth) ('the Act'). 3 In the course of the hearing, the Appellant articulated two further grounds of error, namely, a failure on the part of the Federal Magistrate to find that the Tribunal failed to reach a 'fair decision' and secondly, a failure on the part of the Federal Magistrate to find that the Tribunal was biased. As to these further grounds, the contention is that the Tribunal failed to properly consider the Appellant's claim that if he returned to the People's Republic of China ('PRC') he would be arrested and thus the Tribunal failed to properly consider the Appellant's claims of a well-founded fear of persecution for a Convention reason.