mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 ; 114 FCR 212
Outcome: considered
Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220 ('Rajalingham') refer to the 'civil standard of proof' being not irrelevant to the process of fact-finding by the Refugee Review Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 ; 114 FCR 212 ('Kalala') refer to the Tribunal being obliged to consider matters on 'a standard less than the balance of probabilities' (see at [25]), I doubt the utility of addressing matters on which the Tribunal has to be 'satisfied' by a standard which is related to the standard of proof required in adversarial civil litigation.
Case: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1
Outcome: applied
The definition of 'refugee' is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') at [16]). 33 The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]).
Case: Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: referred to
The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). 36 It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-2, 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: applied
The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). 34 Where diplomatic or consular protection is available, a person must show, not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness. A claimant's unreasonable refusal to seek the protection of his home authorities would not satisfy the requirements of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [19]). 35 Because it is the primary responsibility of the country of nationality to safeguard fundamental human rights and freedoms, the international responsibility has been described as a form of 'surrogate protection'. 'Protection' in that sense has a broader meaning than the narrower sense in which the term is used in Art 1A(2) but, so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [20]. See also per Gummow, Hayne and Crennan JJ in SZATV at [20]).
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: applied
It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-2, 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).
Case: Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73
Outcome: applied
Any inquiry concerning causation arising in an extortion case must allow for the possibility that the extortive activity has a dual character it may be motivated by a personal interest on the perpetrator's part but may also be Convention-related (see Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73 per Finn and Dowsett JJ at [46]-[48]). Where the extortive activity has a dual character, s 91R(1)(a) requires that the Convention reason must be the 'essential and significant reason'.
Case: Chen Chi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293
Outcome: applied
In Chen Chi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 ('Chen') at [13] Gleeson CJ, Gaudron, Gummow and Hayne JJ summarised the findings of the Court in Applicant A as follows: '13 It was held in Applicant A that the "common thread" which links "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee" dictates that "a shared fear of persecution [is not] sufficient to constitute a particular social group".' (Footnotes omitted.) 75 It then proceeded to address persecution for reason of membership of a particular social group. The Tribunal said: 'It was submitted that 'the victim of the Maoist atrocities can be classified as a particular social group ...' In the light of Applicant A and Chen , as quoted above, it would seem to me that persons, albeit victims, with a shared fear of persecution could not constitute a particular social group. The Tribunal went on to say: '... Other possible particular social groups arising on the facts are 'business people in Nepal' and 'wealthy Nepalis.''
Case: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Outcome: referred to
In Applicant A Gummow J expressed his agreement with the following observations of Burchett J in relation to the meaning of persecution in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568: 'Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution.' (see per Gummow J in Applicant A at 284.) 46 In relation to membership of a particular social group, Gummow J opined at 285 that numerous individuals with similar characteristics or aspirations did not comprise a particular social group of which they were members. Once again, his Honour expressed agreement with a passage from the judgment of Burchett J in Ram at 569 as follows: 'There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group.'
Case: V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 ; (2001) 114 FCR 408
Outcome: referred to
In relation to (b) above, Allsop J said in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 ; (2001) 114 FCR 408 at [31] that there was no reason to restrict the meaning of the word 'right' to a right in the strict sense which was legally enforceable.
Case: SZCOS v Minister for Immigration and Citizenship [2008] FCA 570
Outcome: referred to
Reference was made to Sackville J's leading judgment in Rajalingam where 'what if I am wrong?' terminology had been used. In SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 Bennett J referred to Sackville J's distillation of principle in Rajalingam as follows, at [46] and [48]: '46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear ..., whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. ... ... 48 ... Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its finding of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities ... In Kalala conclusions reached by the Tribunal as to whether certain events did nor did not take place were attended by significant doubt. At [6]-[7] North and Madgwick JJ stated [in Kalala] that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded. '
Case: Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
It is also well established that the process is an inquisitorial one and it is a matter for an applicant to provide such information as he or she sees fit to support the claim of a well-founded fear of persecution; see Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [187] .
Case: Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51
Outcome: cited
His Honour there observed that it would be "rare and exceptional" for actual bias to be demonstrated solely from the published reasons for decision. There is nothing in the present case to give rise to any possible suggestion of actual bias nor can there be anything to support a claim of reasonable apprehension of bias within the principles stated by the High Court in Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] to [28]; see also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] .
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: cited
His Honour there observed that it would be "rare and exceptional" for actual bias to be demonstrated solely from the published reasons for decision. There is nothing in the present case to give rise to any possible suggestion of actual bias nor can there be anything to support a claim of reasonable apprehension of bias within the principles stated by the High Court in Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] to [28]; see also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] .
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: followed
As a full court observed in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , there are "many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction". Section 65 of the Migration Act does not require the decision-maker to reach a decision to refuse a visa only if a particular matter is established. As their Honours said, quoting from the decision of another full court: It [section 65] requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. 37 It is well established that the scheme contemplated by Part 7 of the Migration Act expressly contemplates that in particular circumstances an appellant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence; see VSAF of 2003 at [12]. See also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] . For these reasons the appeal must be dismissed with costs.
Case: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Outcome: followed
The third ground of appeal is that the Tribunal failed to consider his claims. This seems to me to be a new ground of appeal which was not a ground of review before the learned Federal Magistrate. In any event it cannot be accepted for the reasons I have already given in relation to the previous ground of appeal. Moreover, as a full court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] : In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing prosecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer his an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application. 29 The final ground of appeal is that the Tribunal failed to carry out its statutory duty. This appears to be a claim that there was a breach of s 424A of the Migration Act . This ground is without foundation.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: followed
It may be that the appellant seeks to raise a submission that the Tribunal had a duty to conduct its own independent inquiries. However, as Wilcox J observed in Prasad v Minister for Immigration and Ethinic Affairs (1985) 6 FCR 155 at 169-170, the circumstances under which a decision will be invalid for failure to conduct its own separate inquiries are strictly limited. There is nothing to suggest that that ground was enlivened in the present case.
Case: Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
His Honour there observed that it would be "rare and exceptional" for actual bias to be demonstrated solely from the published reasons for decision. There is nothing in the present case to give rise to any possible suggestion of actual bias nor can there be anything to support a claim of reasonable apprehension of bias within the principles stated by the High Court in Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] to [28]; see also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] .
Case: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Outcome: followed
In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 , von Doussa J usefully summarised the principles applicable to the ground of bias. The principles are stated at [36] to [38] of his Honour's judgment and need not be repeated.
Case: SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
Outcome: followed
In SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23] , Bennett J referred to a number of authorities which show that where a Tribunal was merely "identifying deficiencies or inadequacies in the appellant's case" it cannot be said that the Tribunal was relying on information communicated to or received by the Tribunal. Rather, it was setting out its thought processes. The same principle applies here. 31 As her Honour Bennett J said, there was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1). Her Honour referred to the authority of a full court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. That paragraph of VAF has been referred to with approval by other full courts.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
As her Honour Bennett J said, there was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1). Her Honour referred to the authority of a full court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. That paragraph of VAF has been referred to with approval by other full courts.
Case: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134
Outcome: cited
It is well established that the scheme contemplated by Part 7 of the Migration Act expressly contemplates that in particular circumstances an appellant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence; see VSAF of 2003 at [12]. See also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] . For these reasons the appeal must be dismissed with costs.
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The Tribunal's decision is a "privative clause decision" within the meaning of s 474. This Court cannot set it aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511.