mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546
Outcome: applied
In X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319 the Full Court considered a situation in which the tribunal had refused to have regard to an applicant for review's diary records of a particular period because they had not been translated. The majority, Gray and Moore JJ, in separate reasons, discussed the obligation of a decision-maker to have regard to untranslated material put before him or her. Gray J referred to the decision of Wilcox, Whitlam and Marshall JJ in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25] . There the Full Court had noted that the tribunal may be under an obligation to obtain a translation of a particular document which was in a foreign language and whose relevance had been explained to the tribunal. However, in Cabal [2001] FCA 546 at [25] the Full Court held that, in general, the tribunal was not required to translate material in a foreign language or to consider large volumes of material whose relevance was not explained and its failure to do so was not a departure from the process of review mandated by the then provisions of the Act, in particular s 414(1). 12 In X v Minister for Immigration 116 FCR at 328 [30] the relevant passages sought to be relied on by X had been translated subsequently and were before the Full Court. In a later case Moore J summarised the effect of the authorities: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (affirmed [2004] FCAFC 171 , although this point was not dealt with by the Full Court). He said at [49] that: "Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely [on] it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother's letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable."
Case: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 
Outcome: considered
The appellant argued that this statement indicated that the tribunal had, in effect, created a reversal of the onus of proof or imposed an onus on the appellant to satisfy it that he had not fabricated an account. He referred to Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 555 F-D where O'Connor, Branson and Marshall JJ noted that under the then provisions of the Act, the tribunal would have been mistaken to adopt a procedure which either placed on an applicant an onus of establishing that he was truthful or was based on the assumption that the purpose of the hearing before it was to discover whether the applicant for review was a truthful person. Undoubtedly, that is still apposite, but the reasons of an administration decision-maker cannot be read in isolation or construed minutely and finely with an eye keenly attuned to the perception of error. Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, said that such reasons are meant to inform. They are not to be scrutinised in over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons have been expressed. Their Honours emphasised that the Court was not to turn a judicial review of the exercise of jurisdiction by an executive decision-maker into a merits based review. 23 In Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423-424 [67]-[70]; [2000] HCA 1 ; 74 ALJR 405 at 417, McHugh J pointed out that it was quintessentially the function of the tribunal to come to a decision about the credibility of an applicant for review. If one took out of context the statement concerning fabrication, that I have quoted in the credibility section of the tribunal's findings and reasons, it may well fall within the criticism noted in Kopalapillai 86 FCR 555 F-G. However, in the context of the reasons as a whole, I am not satisfied that that is a fair or appropriate way to read the tribunal's reasoning on the appellant's credibility.
Case: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153
Outcome: referred to
In X v Minister for Immigration 116 FCR at 328 [30] the relevant passages sought to be relied on by X had been translated subsequently and were before the Full Court. In a later case Moore J summarised the effect of the authorities: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (affirmed [2004] FCAFC 171 , although this point was not dealt with by the Full Court). He said at [49] that: "Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely [on] it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother's letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable."
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 ; [2007] HCA 26
Outcome: applied
Moreover, in my opinion the absence, even today of any translation of the newspaper articles is significant. There is no evidence to indicate that they had anything in them beyond the point which the tribunal recorded as being made by the appellant, namely that they recorded the existence of Ansar Islam. This provides another reason to refuse relief. The absence of such evidence means that no useful result would ensue from the grant of relief desired by the appellant, since there is no reason to think that a further hearing with translated articles would have provided any further information to which the tribunal could have had regard relevant to its exercise of its functions: see SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 19 The second ground of appeal focused on the way in which the tribunal expressed its reasoning for rejecting the appellant's second factual account. In particular, in its findings and reasons the tribunal reviewed each of the six matters it had raised with the appellant in its letter of 8 November, determining each of them adversely to him. However, in the course of those determinations the tribunal considered the further explanations and statements made by the appellant at the second hearing. And, on a number of occasions, it modified the harsher view it had explained in its letter as the conclusion to which it was tending at that earlier time. For example, at the second hearing the appellant explained that the account he had given in his interview with the delegate of his dealing with police officers in Pakistan was not different to the account that he had given at the first hearing. The tribunal noted that it later had listened to the tape of the interview with the delegate and found that this partly confirmed the appellant's claim of his dealings with police officers. But, the tribunal came to the view that the inherent improbability of that claim meant that it was not satisfied that the appellant had in fact had the experience that he recounted. 20 Likewise, after the second hearing the tribunal modified its earlier view concerning the appellant's claims about Ansar Islam from not being satisfied that the group existed at all, as recorded in its letter of 8 November, to accepting its existence. But it was not satisfied about the appellant's account of his connection with the group. In particular, the tribunal had noted in its letter of 8 November, as I have set out above, that it found it very difficult to accept that the appellant had not fabricated his story about the group to support a refugee claim.
Case: SZLSW v Minister of Immigration [2008] FMCA 498
Outcome: affirmed
This is an appeal from a decision of the Federal Magistrates Court refusing to grant constitutional writ relief to the appellant in respect of a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa: SZLSW v Minister of Immigration [2008] FMCA 498. The appellant was a Pakistani citizen who hailed from the North West Frontier Province. 2 The appellant arrived in Australia in early September 2007 and was detained at the airport because of irregularities perceived with the manner in which he entered. He made an application for a protection visa later in September 2007 and was assisted by the Refugee Advice and Casework Service in doing so. The service continued to represent him up to the time at which the delegate refused his application. He then applied to the tribunal for a review of the delegate's decision with the assistance of a solicitor migration agent. 3 The tribunal held an initial hearing on 6 November 2007 in which a number of concerns with the claims made by the appellant were discussed. At that hearing the tribunal informed the appellant that it would write to him about issues of concern it had raised with him at the hearing and would give him the option either to provide a written submission or to have another hearing at which he could respond or comment on the issues of concern. On 8 November 2007 the tribunal wrote to the appellant confirming those options. The letter outlined detailed issues under six separate headings relating to issues that concerned the tribunal arising from his evidence at the first hearing. The appellant's solicitor migration agent responded advising the tribunal that the appellant wished to attend a further hearing. The tribunal then invited him to do so.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
The appellant argued that this statement indicated that the tribunal had, in effect, created a reversal of the onus of proof or imposed an onus on the appellant to satisfy it that he had not fabricated an account. He referred to Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 555 F-D where O'Connor, Branson and Marshall JJ noted that under the then provisions of the Act, the tribunal would have been mistaken to adopt a procedure which either placed on an applicant an onus of establishing that he was truthful or was based on the assumption that the purpose of the hearing before it was to discover whether the applicant for review was a truthful person. Undoubtedly, that is still apposite, but the reasons of an administration decision-maker cannot be read in isolation or construed minutely and finely with an eye keenly attuned to the perception of error. Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, said that such reasons are meant to inform. They are not to be scrutinised in over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons have been expressed. Their Honours emphasised that the Court was not to turn a judicial review of the exercise of jurisdiction by an executive decision-maker into a merits based review.
Case: Minister for Immigration &amp; Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 ; 74 ALJR 405 ; [2000] HCA 1
Outcome: cited
In Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423-424 [67]-[70]; [2000] HCA 1 ; 74 ALJR 405 at 417, McHugh J pointed out that it was quintessentially the function of the tribunal to come to a decision about the credibility of an applicant for review. If one took out of context the statement concerning fabrication, that I have quoted in the credibility section of the tribunal's findings and reasons, it may well fall within the criticism noted in Kopalapillai 86 FCR 555 F-G. However, in the context of the reasons as a whole, I am not satisfied that that is a fair or appropriate way to read the tribunal's reasoning on the appellant's credibility.
Case: X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319
Outcome: considered
In X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319 the Full Court considered a situation in which the tribunal had refused to have regard to an applicant for review's diary records of a particular period because they had not been translated. The majority, Gray and Moore JJ, in separate reasons, discussed the obligation of a decision-maker to have regard to untranslated material put before him or her. Gray J referred to the decision of Wilcox, Whitlam and Marshall JJ in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25] . There the Full Court had noted that the tribunal may be under an obligation to obtain a translation of a particular document which was in a foreign language and whose relevance had been explained to the tribunal. However, in Cabal [2001] FCA 546 at [25] the Full Court held that, in general, the tribunal was not required to translate material in a foreign language or to consider large volumes of material whose relevance was not explained and its failure to do so was not a departure from the process of review mandated by the then provisions of the Act, in particular s 414(1). 12 In X v Minister for Immigration 116 FCR at 328 [30] the relevant passages sought to be relied on by X had been translated subsequently and were before the Full Court. In a later case Moore J summarised the effect of the authorities: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (affirmed [2004] FCAFC 171 , although this point was not dealt with by the Full Court). He said at [49] that: "Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely [on] it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother's letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable."
Case: Australian &amp; International Pilots Association v Qantas Airways Limited (ACN 009 661 901) [2008] FCA 1972
Outcome: referred to
23 December 2008, I delivered reasons for judgment in this proceeding, published as Australian &amp; International Pilots Association v Qantas Airways Limited (ACN 009 661 901) [2008] FCA 1972. On that occasion, I ordered that the proceeding be listed on a date to be fixed, for further hearing on the outstanding issues referred to in those reasons for judgment. I also directed the parties to bring in minutes of orders reflecting the conclusions reached in the reasons for judgment. The matter has been fixed for hearing today to deal with the questions identified in those reasons for judgment. Those questions were identified at [129] of the reasons for judgment as: When the matter came before me today, counsel for the respective parties provided me with short minutes of order, to which they both consent. The only orders sought are:
Case: AIPA &amp; Anor v Qantas Airways [2008] FMCA 1008 (2008) 176 IR 453
Outcome: referred to
were, and are, no prior findings of any relevant contravention of the certified agreement concerned. During the time that my judgment was reserved in this case, the Federal Magistrates Court of Australia imposed a financial penalty on the respondent, at the suit of the applicant, in AIPA &amp; Anor v Qantas Airways [2008] FMCA 1008 (2008) 176 IR 453. In that proceeding the learned federal magistrate found that the respondent had committed three breaches of clauses of EBA7, unrelated to the clauses of EBA6 that were in issue in the present case. The federal magistrate imposed a penalty in respect of the three breaches regarded as arising out of a single course of conduct, of $5,000 whereas the maximum penalty is $33,000. In doing so, at [84], his Honour expressed the view that the breaches were not particularly severe. They concerned conduct subsequent to the conduct in issue in the present case and the judgment was delivered while judgment in the present case was reserved. The respondent has appealed from the federal magistrate's judgment and it is apparent from the notice of appeal that there is a substantial argument about the proper construction of the provisions concerned. Accordingly, the weight of the findings made by the federal magistrate, in considering parallel conduct by the respondent for present purposes, is minimal. In those circumstances and in the light of the applicant's change of position about seeking financial penalties, it is necessary for me to consider the questions of specific and general deterrence. It is apparent that there is no need for specific deterrence in the present case. There is no indication at all that the respondent has ever had an attitude of turning its back on the relevant provisions of certified agreements. There is no occasion for teaching it the lesson that it must have regard to such provisions at all times and must comply with them. Indeed, on the evidence that emerged in the course of this case, it is undoubtedly the fact that the respondent devotes a substantial amount of its resources to ensuring that it complies with certified agreements on a daily basis.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: cited
In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389, Kirby J said, at 405, speaking of the functions of the Tribunal: 'The tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.' (Footnotes omitted)
Case: SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548
Outcome: referred to
In SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 , von Doussa J said that the Tribunal was not obliged to consider claims that have not been made.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 219 ALR 27
Outcome: cited
The Tribunal's duty in respect of claims of this kind was further considered by the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 219 ALR 27 (' NABE '). In that case the Full Court at 44 approved a statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 where his Honour said that: ' 18 The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised a relevant issue that the Tribunal should have dealt with.' 45 The Full Court in NABE went on to say at 44: 'This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.' 46 The appellants' case was based upon a claim of political persecution. Whilst the Tribunal found that a number of threats had been made by particular persons, some of whom were politicians, it found that the motivation for the persecution was a desire to protect 'their own business interests from competition'. There was evidence to support that finding. 47 In any event, the Tribunal found that the threats did not amount to serious harm within the meaning of s 91R of the Act. In view of the fact that the Tribunal rejected the appellants' claim that the senior political figure visited his home and carried out the threats and the attack on his father-in-law, such a finding was open to the Tribunal.
Case: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: referred to
The appellants have argued that the Tribunal did not 'alert them' or 'canvass fully' the appellants' claimed link between membership of the social group of businessmen and membership of the political entity. However, the Tribunal did not have the responsibility of advancing a case for the appellants: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510; Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437.
Case: Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437
Outcome: referred to
The appellants have argued that the Tribunal did not 'alert them' or 'canvass fully' the appellants' claimed link between membership of the social group of businessmen and membership of the political entity. However, the Tribunal did not have the responsibility of advancing a case for the appellants: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510; Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: cited
The Tribunal's responsibility in the conduct of the hearing was governed by s 422B of the Act. The common law natural justice hearing rule has been excluded by operation of that section. It did not apply in the hearing by the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.