mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; 197 CLR 611
Outcome: followed
The task entrusted to the Refugee Review Tribunal is, as stated in s 414(1) of the Migration Act 1958 (Cth), to conduct a " review ." Section 415 sets forth the powers of the Tribunal. Section 420 sets forth as follows the manner in which the Tribunal is to carry out its functions: Refugee Review Tribunal's way of operating (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. This section contains " exhortatory provisions ": Sun Zhan Qui v Minister for Immigration &amp; Ethnic Affairs (Unreported, Federal Court of Australia, Lindgren J, 6 May 1997). It, as with like provisions, is: ...intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 at [49] , [1999] HCA 21 ; 197 CLR 611 at 628 per Gleeson CJ and McHugh J.
Case: Minister for Immigration &amp; Multicultural Affairs v Wang [2003] HCA 11 ; 215 CLR 518
Outcome: followed
There is no reason to impose any constraint upon the power conferred by s 421(2). The decision of the initial Tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration. It is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to be exercised by the Principal Member -- or his delegate -- was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as " justice being seen to be done ." Section 421(2) confers a power of appointment upon the Principal Member -- or his delegate: Minister for Immigration &amp; Multicultural Affairs v Wang [2003] HCA 11 at [40] , [2003] HCA 11 ; 215 CLR 518 at 532 per McHugh J. In the present proceedings, that power was exercised by a person with an appropriate delegation.
Case: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Outcome: followed
The Appellants now appeal to the Federal Court. A proposed Amended Notice of Appeal was served upon the Respondent Minister on 16 November 2007 and seeks to raise three Grounds of Appeal , namely: 1. The Tribunal decision is affected by apprehended bias. 2. The Tribunal failed to comply with the Migration Act 1958 s. 425. 3. The Tribunal lacked the authority or power to make the decision. Particulars are provided in respect to each of these grounds. The Respondent Minister does not oppose the first two grounds being now considered; the third ground is opposed. 39 The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, " justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing ": Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The " usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed ": Industry Research &amp; Development Board v IMT Ltd [2001] FCA 85 at [40] .
Case: Re BHP Petroleum Pty Ltd and Collector of Customs, Vic [1987] AATA 13
Outcome: followed
Further, for the purposes of s 422, a member of a tribunal may " not [be] available " where (for example) his or her term of appointment has expired: Cf Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034 at 2040. Nor is that expression confined to circumstances in which a tribunal member has died (eg, Re Hulls and Department of Social Security [1990] AATA 198 , 21 ALD 322 at 323; Re BHP Petroleum Pty Ltd and Collector of Customs, Vic [1987] AATA 13). The expression also extends to those situations where a tribunal member has resigned (eg, Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293 at [9] ; Re Mcintyre and Repatriation Commission [1990] AATA 225 at [2] . But these are not the only circumstance in which a member may " not [be] available. " Although it is not necessary to resolve the point, a member may also " not [be] available " where an order is made quashing the decision of the Tribunal as originally constituted. For the purposes of s 422(1)(b), it is considered that the member constituting the initial Tribunal may thereby become " not available ". Any contrary conclusion may involve embracing a proposition that a member remains " available " even though " justice in general is better seen to be done " if that member did not further participate in any rehearing. This construction of s 422(1)(b) may be further reinforced when consideration is given to the terms of that provision, namely a member ceasing to be available " for any reason ."
Case: Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034
Outcome: followed
Further, for the purposes of s 422, a member of a tribunal may " not [be] available " where (for example) his or her term of appointment has expired: Cf Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034 at 2040. Nor is that expression confined to circumstances in which a tribunal member has died (eg, Re Hulls and Department of Social Security [1990] AATA 198 , 21 ALD 322 at 323; Re BHP Petroleum Pty Ltd and Collector of Customs, Vic [1987] AATA 13). The expression also extends to those situations where a tribunal member has resigned (eg, Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293 at [9] ; Re Mcintyre and Repatriation Commission [1990] AATA 225 at [2] . But these are not the only circumstance in which a member may " not [be] available. " Although it is not necessary to resolve the point, a member may also " not [be] available " where an order is made quashing the decision of the Tribunal as originally constituted. For the purposes of s 422(1)(b), it is considered that the member constituting the initial Tribunal may thereby become " not available ". Any contrary conclusion may involve embracing a proposition that a member remains " available " even though " justice in general is better seen to be done " if that member did not further participate in any rehearing. This construction of s 422(1)(b) may be further reinforced when consideration is given to the terms of that provision, namely a member ceasing to be available " for any reason ."
Case: Re Hulls and Department of Social Security [1990] AATA 198 ; 21 ALD 322
Outcome: followed
Further, for the purposes of s 422, a member of a tribunal may " not [be] available " where (for example) his or her term of appointment has expired: Cf Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034 at 2040. Nor is that expression confined to circumstances in which a tribunal member has died (eg, Re Hulls and Department of Social Security [1990] AATA 198 , 21 ALD 322 at 323; Re BHP Petroleum Pty Ltd and Collector of Customs, Vic [1987] AATA 13). The expression also extends to those situations where a tribunal member has resigned (eg, Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293 at [9] ; Re Mcintyre and Repatriation Commission [1990] AATA 225 at [2] . But these are not the only circumstance in which a member may " not [be] available. " Although it is not necessary to resolve the point, a member may also " not [be] available " where an order is made quashing the decision of the Tribunal as originally constituted. For the purposes of s 422(1)(b), it is considered that the member constituting the initial Tribunal may thereby become " not available ". Any contrary conclusion may involve embracing a proposition that a member remains " available " even though " justice in general is better seen to be done " if that member did not further participate in any rehearing. This construction of s 422(1)(b) may be further reinforced when consideration is given to the terms of that provision, namely a member ceasing to be available " for any reason ."
Case: Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: followed
It is accepted that a reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. It is also accepted that it is not sufficient if the reasonable bystander merely " has a vague sense of unease or disquiet ": Jones v Australian Competition &amp; Consumer Commission [2002] FCA 1054 at [100] , 76 ALD 424 at 441. And the question as to whether a reasonable apprehension of bias has been " firmly established " must also necessarily take into account the manner in which the legislature has directed the Tribunal to carry out its functions (ie s 420 of the 1958 Act) and the inquisitorial nature of the review being undertaken.
Case: Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293
Outcome: followed
Further, for the purposes of s 422, a member of a tribunal may " not [be] available " where (for example) his or her term of appointment has expired: Cf Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034 at 2040. Nor is that expression confined to circumstances in which a tribunal member has died (eg, Re Hulls and Department of Social Security [1990] AATA 198 , 21 ALD 322 at 323; Re BHP Petroleum Pty Ltd and Collector of Customs, Vic [1987] AATA 13). The expression also extends to those situations where a tribunal member has resigned (eg, Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293 at [9] ; Re Mcintyre and Repatriation Commission [1990] AATA 225 at [2] . But these are not the only circumstance in which a member may " not [be] available. " Although it is not necessary to resolve the point, a member may also " not [be] available " where an order is made quashing the decision of the Tribunal as originally constituted. For the purposes of s 422(1)(b), it is considered that the member constituting the initial Tribunal may thereby become " not available ". Any contrary conclusion may involve embracing a proposition that a member remains " available " even though " justice in general is better seen to be done " if that member did not further participate in any rehearing. This construction of s 422(1)(b) may be further reinforced when consideration is given to the terms of that provision, namely a member ceasing to be available " for any reason ."
Case: Re Mcintyre and Repatriation Commission [1990] AATA 225
Outcome: followed
Further, for the purposes of s 422, a member of a tribunal may " not [be] available " where (for example) his or her term of appointment has expired: Cf Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034 at 2040. Nor is that expression confined to circumstances in which a tribunal member has died (eg, Re Hulls and Department of Social Security [1990] AATA 198 , 21 ALD 322 at 323; Re BHP Petroleum Pty Ltd and Collector of Customs, Vic [1987] AATA 13). The expression also extends to those situations where a tribunal member has resigned (eg, Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293 at [9] ; Re Mcintyre and Repatriation Commission [1990] AATA 225 at [2] . But these are not the only circumstance in which a member may " not [be] available. " Although it is not necessary to resolve the point, a member may also " not [be] available " where an order is made quashing the decision of the Tribunal as originally constituted. For the purposes of s 422(1)(b), it is considered that the member constituting the initial Tribunal may thereby become " not available ". Any contrary conclusion may involve embracing a proposition that a member remains " available " even though " justice in general is better seen to be done " if that member did not further participate in any rehearing. This construction of s 422(1)(b) may be further reinforced when consideration is given to the terms of that provision, namely a member ceasing to be available " for any reason ."
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 ; 201 ALR 437
Outcome: followed
In conducting its " review ", the Tribunal is conducting an " inquisitorial hearing ": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58] , 201 ALR 437 at 451. Such an obligation is different to that discharged by superior courts and may be more onerous: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 33. Albeit in dissent as to the ultimate conclusion, the following observations of Kirby J are apposite: ...the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal's operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial. This " inquisitorial " nature of the hearing is emphasised by s 424(1) and the conferral upon the Tribunal of power to " get any information that it considers relevant ". See also SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [111] [123], 228 CLR 294 at 330 3 per Gummow J. As correctly noted by the Federal Magistrate, the task of the Tribunal was to undertake a " proper, genuine and realistic consideration [of] the merits of the case ": SZEJF v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2006] FCA 724 at [39] per Rares J. The task of this Court is to ensure that any decision of the Tribunal is a decision authorised by the 1958 Act; the task of this Court is not to review the merits of the decision reached: Cf Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [16] , [2005] HCA 72 ; 222 ALR 411 at 416 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; 228 CLR 294
Outcome: cited
In conducting its " review ", the Tribunal is conducting an " inquisitorial hearing ": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58] , 201 ALR 437 at 451. Such an obligation is different to that discharged by superior courts and may be more onerous: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 33. Albeit in dissent as to the ultimate conclusion, the following observations of Kirby J are apposite: ...the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal's operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial. This " inquisitorial " nature of the hearing is emphasised by s 424(1) and the conferral upon the Tribunal of power to " get any information that it considers relevant ". See also SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [111] [123], 228 CLR 294 at 330 3 per Gummow J. As correctly noted by the Federal Magistrate, the task of the Tribunal was to undertake a " proper, genuine and realistic consideration [of] the merits of the case ": SZEJF v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2006] FCA 724 at [39] per Rares J. The task of this Court is to ensure that any decision of the Tribunal is a decision authorised by the 1958 Act; the task of this Court is not to review the merits of the decision reached: Cf Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [16] , [2005] HCA 72 ; 222 ALR 411 at 416 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
Case: Sun Zhan Qui v Minister for Immigration &amp; Ethnic Affairs (Unreported, Federal Court of Australia, Lindgren J, 6 May 1997)
Outcome: followed
The task entrusted to the Refugee Review Tribunal is, as stated in s 414(1) of the Migration Act 1958 (Cth), to conduct a " review ." Section 415 sets forth the powers of the Tribunal. Section 420 sets forth as follows the manner in which the Tribunal is to carry out its functions: Refugee Review Tribunal's way of operating (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. This section contains " exhortatory provisions ": Sun Zhan Qui v Minister for Immigration &amp; Ethnic Affairs (Unreported, Federal Court of Australia, Lindgren J, 6 May 1997). It, as with like provisions, is: ...intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 at [49] , [1999] HCA 21 ; 197 CLR 611 at 628 per Gleeson CJ and McHugh J.
Case: SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 ; 228 CLR 152
Outcome: cited
The opportunity was extended to the Appellants to " give evidence and present arguments relating to the issues arising in relation to the decision under review " within the meaning of s 425(1). That section confers upon an applicant an opportunity to " appear before the Tribunal to give evidence and present arguments "; the section does not confer upon an applicant a unilateral right to secure an adjournment of proceedings so that some particular evidence of a witness is in fact available. So long as an applicant has been given a meaningful opportunity to " give evidence and present arguments ", even if it is not the particular evidence which an applicant may prefer, there has been no breach of s 425. The issues being inquired into by the Tribunal, it is considered, were clearly identified with the First Appellant and she was given an opportunity to expand upon those issues. See SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 at [47] , 228 CLR 152 at 164 7. 23 In advance of the hearing, the Appellants provided a proposed Amended Notice of Appeal and had served upon the First Respondent a Notice to Produce . The Appellants correctly accepted that they would require leave to rely upon the third proposed Ground of Appeal , that being a ground not raised for resolution before the Federal Magistrate. 24 Although the First Respondent opposed the granting of leave, Counsel quite properly had in Court those documents which answered the Notice to Produce and those documents were made available to the Appellants. Ultimately those additional facts which were relevant to the further ground, should leave be granted, became the subject of a " Note of Facts Agreed ". By means of that Note it became common ground that the Senior Member who in fact reconstituted the Tribunal had an appropriate delegation from the Principal Member to exercise the powers conferred by s 421 and/or s 422 and that s 422A(2) of the 1958 Act had not been complied with.
Case: SZBLY v Minister for Immigration &amp; Citizenship [2007] FCA 765 ; 96 ALD 70
Outcome: followed
It was not disputed that the Court has ample power to allow both an amendment to a Notice of Appeal (see Federal Court of Australia Act 1976 (Cth), s 28(1)(b) ; Federal Court Rules (Cth), O 13, r 2) and to allow further evidence, if appropriate, on the appeal (Federal Court of Australia Act 1976 (Cth) s 27). The power is to be exercised in an appropriate case: see White v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 232 , 96 FCR 511; SZBLY v Minister for Immigration &amp; Citizenship [2007] FCA 765 , 96 ALD 70.
Case: SZEJF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 724
Outcome: followed
In conducting its " review ", the Tribunal is conducting an " inquisitorial hearing ": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58] , 201 ALR 437 at 451. Such an obligation is different to that discharged by superior courts and may be more onerous: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 33. Albeit in dissent as to the ultimate conclusion, the following observations of Kirby J are apposite: ...the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal's operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial. This " inquisitorial " nature of the hearing is emphasised by s 424(1) and the conferral upon the Tribunal of power to " get any information that it considers relevant ". See also SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [111] [123], 228 CLR 294 at 330 3 per Gummow J. As correctly noted by the Federal Magistrate, the task of the Tribunal was to undertake a " proper, genuine and realistic consideration [of] the merits of the case ": SZEJF v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2006] FCA 724 at [39] per Rares J. The task of this Court is to ensure that any decision of the Tribunal is a decision authorised by the 1958 Act; the task of this Court is not to review the merits of the decision reached: Cf Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [16] , [2005] HCA 72 ; 222 ALR 411 at 416 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).