mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: considered
Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886.
Case: Vyvyan v Vyvyan (1861) 54 ER 813
Outcome: referred to
In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 587 Toohey J said: 'There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case'. However the person making the waiver must have a full appreciation of his or her action. In Vyvyan v Vyvyan (1861) 30 Beav 65 at 74; 54 ER 813 at 817 the Court stated: 'Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim.'
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: followed
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: applied
An allegation of apprehension of bias is a serious matter which must be specifically pleaded: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). The appellant is required to establish that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to consider: see Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [90] per Kirby J.
Case: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539
Outcome: referred to
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128
Outcome: cited
An allegation of apprehension of bias is a serious matter which must be specifically pleaded: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). The appellant is required to establish that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to consider: see Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [90] per Kirby J.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59
Outcome: applied
The findings of the Tribunal in relation to the summons and verdict documents were available to it on the basis of the comprehensive findings it had made concerning its lack of satisfaction of the appellant's credibility and the truthfulness of his claims. The High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ said: It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. 27 The fact that the Tribunal stated that it did not give weight to the documents ' based on the findings above ', that is, the Tribunal's findings as to the lack of credibility of the appellant, does not constitute jurisdictional error on the part of the Tribunal. Accordingly the Court dismisses this submission. 28 The Court can find no error in the decision of the Tribunal nor of Turner FM and accordingly the appeal is dismissed.
Case: Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
An allegation of apprehension of bias is a serious matter which must be specifically pleaded: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). The appellant is required to establish that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to consider: see Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [90] per Kirby J.
Case: Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437
Outcome: followed
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100
Outcome: referred to
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834
Outcome: referred to
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: SZCOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 9
Outcome: referred to
In his written submissions, the appellant referred to the decision of the Full Court of this Court in SZCOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 9 in support of his contention that the Tribunal had disregarded the summons and verdict documents that he had provided to the Tribunal, and that the Tribunal had not provided the appellant with an opportunity to comment on issues arising from the documentary evidence he had provided, in breach of s 424A(1) of the Act. 14 Turner FM dismissed the appellant's claim that the Tribunal had breached s 424A(1) of the Act for two reasons. Firstly, the Tribunal had relied on its own subjective appraisals of the claims and evidence advanced by the appellant and this did not constitute ' information' within the meaning of the Act. Secondly the independent country information relied upon by the Tribunal in its finding that the supporting documents provided by the appellant were not a reliable source of evidence, fell within the exception to s 424A(1) in s 424A(3)(b) of the Act. 15 It is clear from the decision of the Tribunal that it had relied on its subjective appraisal of the evidence given by the appellant in its finding that the appellant's claims were not credible. The Tribunal considered the appellant's evidence to be vague, lacking in detail and cogency and that his claims were implausible. It concluded that the appellant was not being truthful with respect to his claims.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: referred to
The notice of appeal contains two grounds. The first is that the Tribunal breached its duty under s 424A of the Act . Although there was no argument put to me to support this allegation, I have had regard to the decisions and reasons of the Federal Magistrate and the Tribunal, and I am not persuaded there has been any breach of that section. I agree with the reasoning of the Federal Magistrate in relation to the authority of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , namely, that s 424A of the Act is not engaged by statements which merely point to inconsistencies in an applicant's evidence. 5 In relation to the second ground of appeal, which is that the Tribunal failed to refer to sufficient independent country information to properly consider the appellant's application, I am not persuaded that this ground has any force for three reasons. The first reason is because the decision as to what constitutes sufficient independent country information is a matter for the Tribunal; it is purely a question of fact which is not capable of giving rise to a jurisdictional error and cannot be entered into by this Court. Secondly, the decision as to what type of independent country information should be consulted is again a matter for the Tribunal which cannot be the subject of review. Finally, there is no indication either in the submissions of the appellant or on the face of the Tribunal's reasons as to any way in which other independent country information was not taken into account. In the absence of any reference to specific material which it is said ought to have been taken into account, this ground of appeal cannot succeed. 6 Accordingly, for these reasons, I conclude that the appeal ought to be dismissed, and that costs be fixed in a lump sum of $2,280.00. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 20 February 2008 The appellants appeared in person Counsel for the Respondent: Mr G. Hooper Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 19 February 2008 Date of Judgment: 19 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/119.html
Case: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Outcome: applied
The approach of North J in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 is apt. In circumstances where the Tribunal's decision is based on alternative reasons and grounds, relief would not issue. It is unnecessary to deal with an additional argument put by the Minister that even if relief would otherwise issue the Court should not grant it, as a matter of discretion. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 15 February 2006 The Appellant appeared in person Counsel for the Respondent: R A Pepper Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 8 February 2006 Date of Judgment: 8 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/57.html