mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6
Outcome: cited
Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025).
Case: Nangkiriny v Western Australia [2004] FCA 1156 
Outcome: cited
Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025).
Case: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595
Outcome: cited
preference of settling matters as opposed to litigating them has been recognised as a desirable public objective by the High Court and this Court on numerous occasions and its is always heartening when native title claims are settled by agreement rather than through litigation. As the Chief Justice said in Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 , at [8]: 'The courts have always encouraged parties to settle their claims amicably'. Agreement is especially desirable in native title cases due to the importance, complexity and sensitivity of the issues involved. Agreement between the parties minimises cost and distress and establishes goodwill between the parties for future dealings: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595.
Case: Ward v State of Western Australia [2006] FCA 1848
Outcome: referred to
North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Brown at [23] in respect of s 87A and Hughes at [9] in respect of s 87).
Case: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
decision-maker who makes a finding of ultimate fact for which there is no evidence commits an error of law: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; (1975) 132 CLR 473. Not all errors of law are jurisdictional errors and therefore outside the reach of the privative clause in s 474(1) of the Migration Act : Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 ; 190 ALR 601. An error constituted by making a finding of fact for which there is no evidence could indicate that the decision-maker applied the wrong legal test, or failed to apply the correct legal test, or took into account irrelevant considerations or failed to take into account relevant considerations and, in those circumstances, the error would constitute a jurisdictional error: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 ; 197 ALR 389
Outcome: discussed
an applicant claims a well-founded fear of persecution because of membership of a particular social group then, in the ordinary case, the first question is whether the alleged group is a particular social group within the definition. That question involves, at least in part, a question of law. The next question is one of fact and it is whether the applicant is a member of the group. The questions thereafter are whether the applicant has a fear of persecution, whether that fear is well-founded and whether it is for a Convention reason (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 ; 197 ALR 389 (" Dranichnikov ") at 1092; 394 [26] per Gummow and Callinan JJ (with whom Hayne J agreed)). Particular problems have arisen in cases where the applicant claims that he or she is a member of a particular social group and fears serious harm, but the claim is made that there is no pre-existing social group and that the serious harm claimed arises from the application of a law of general application. I was taken in some detail to three decisions of the High Court and one decision of a single judge of this Court, and it is to those decisions that I now turn. In Dranichnikov , the appellant claimed that he had a well-founded fear of persecution for reasons of membership of a particular social group, being Russian businessmen who publicly criticised law enforcement authorities for failing to take action against crimes or criminals. The appellant submitted that the Tribunal erred because it failed to consider his claim to refugee status by reference to that particular social group and only considered it by reference to the group of Russian businessmen. The appellant sought from the High Court special leave to appeal and relief under s 75(v) of the Constitution . The Court granted leave and relief under s 75(v). Gummow and Callinan JJ (with whom Hayne J agreed) considered that a failure by the Tribunal to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice to the appellant (which was not a statutory ground of judicial review by reason of the then provisions of the Migration Act ) and was a constructive failure to exercise jurisdiction. As cited above, their Honours said (at 1092; 394 [26]): "At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason." (Citation omitted.)
Case: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244
Outcome: cited
Full Court of this Court has held that a similar result may follow where the Tribunal fails to consider a claim put forward in the material before the Tribunal, even though the claim is not expressly articulated in the oral submissions and evidence at the hearing: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at 248 [13] - [14] per Merkel J; at 259 [41]-[42] per Allsop J; at 245 [1] per Spender J. The Full Court of this Court has also emphasised that, for the principle to be engaged, the claim must be one which emerges clearly from the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 22 [68] .
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 ; 190 ALR 601
Outcome: cited
decision-maker who makes a finding of ultimate fact for which there is no evidence commits an error of law: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; (1975) 132 CLR 473. Not all errors of law are jurisdictional errors and therefore outside the reach of the privative clause in s 474(1) of the Migration Act : Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 ; 190 ALR 601. An error constituted by making a finding of fact for which there is no evidence could indicate that the decision-maker applied the wrong legal test, or failed to apply the correct legal test, or took into account irrelevant considerations or failed to take into account relevant considerations and, in those circumstances, the error would constitute a jurisdictional error: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
Full Court of this Court has held that a similar result may follow where the Tribunal fails to consider a claim put forward in the material before the Tribunal, even though the claim is not expressly articulated in the oral submissions and evidence at the hearing: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at 248 [13] - [14] per Merkel J; at 259 [41]-[42] per Allsop J; at 245 [1] per Spender J. The Full Court of this Court has also emphasised that, for the principle to be engaged, the claim must be one which emerges clearly from the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 22 [68] .
Case: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Outcome: cited
decision-maker who makes a finding of ultimate fact for which there is no evidence commits an error of law: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; (1975) 132 CLR 473. Not all errors of law are jurisdictional errors and therefore outside the reach of the privative clause in s 474(1) of the Migration Act : Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 ; 190 ALR 601. An error constituted by making a finding of fact for which there is no evidence could indicate that the decision-maker applied the wrong legal test, or failed to apply the correct legal test, or took into account irrelevant considerations or failed to take into account relevant considerations and, in those circumstances, the error would constitute a jurisdictional error: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
Case: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Outcome: cited
decision-maker who makes a finding of ultimate fact for which there is no evidence commits an error of law: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; (1975) 132 CLR 473. Not all errors of law are jurisdictional errors and therefore outside the reach of the privative clause in s 474(1) of the Migration Act : Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 ; 190 ALR 601. An error constituted by making a finding of fact for which there is no evidence could indicate that the decision-maker applied the wrong legal test, or failed to apply the correct legal test, or took into account irrelevant considerations or failed to take into account relevant considerations and, in those circumstances, the error would constitute a jurisdictional error: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
Case: SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1
Outcome: referred to
principle which I have identified by reference to the reasons of the Full Court has been applied by single judges of this Court: see, for example, SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 ; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 ; SZKMX v Minister for Immigration and Citizenship [2008] FCA 856.
Case: SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
Outcome: referred to
principle which I have identified by reference to the reasons of the Full Court has been applied by single judges of this Court: see, for example, SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 ; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 ; SZKMX v Minister for Immigration and Citizenship [2008] FCA 856.
Case: SZKMX v Minister for Immigration and Citizenship [2008] FCA 856
Outcome: referred to
principle which I have identified by reference to the reasons of the Full Court has been applied by single judges of this Court: see, for example, SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 ; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 ; SZKMX v Minister for Immigration and Citizenship [2008] FCA 856.
Case: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332
Outcome: discussed
appellant in the present case relied heavily on the decision of Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 ; (2004) 81 ALD 332 , and it is necessary to consider that decision. There were three applicants for protection visas in that case: a Chinese couple and their third child, who was born in Australia. The applicants claimed a well-founded fear of persecution as a result of the contravention of China's one child policy. The harm feared by the parents was forced sterilisation of the applicant mother, a substantial financial penalty which they could not pay and limitations on employment opportunities. In the case of the child, the fear was that, as a black child, he would face significant discrimination and disadvantage. For present purposes, it is necessary to discuss the reasons only in so far as they deal with the claim of the applicant parents. The Tribunal found that the parents were not members of a particular social group because the harm suffered or feared was the sole defining characteristic of the group. It found that the child was a member of a social group, but that he would not suffer persecution as a black child. It found that China's family planning laws were not discriminatory because they applied to all citizens equally, and are directed at a legitimate purpose, namely, limiting population growth. It further found that the financial burden on the parents was serious, but was not persecution within the Convention or s 91R of the Act. Merkel J held that, as far as the parents' claim was concerned, the Tribunal had committed a jurisdictional error. It had failed to consider the correct question in determining whether the parents were members of a particular social group. The correct test was (at 345 [32]): "...whether, over time, the singling out of parents of 'black children' for discriminatory treatment under China's family planning laws might have been absorbed into the social consciousness of the community with the consequence that a combination of legal and social factors (or norms) prevalent in the community indicated that such parents form a social group distinguishable from the rest of the community: cf Applicant S at ALR 251; ALD 550 [31]."
Case: MZWMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 513
Outcome: affirmed
This is an appeal from a judgment of O'Dwyer FM dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"): MZWMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 513. By that decision, the Tribunal affirmed the decision of a delegate of the respondent Minister refusing to grant the appellant a class XA protection visa. 2 The appellant, a national of India, is Muslim. He arrived in Australia on 13 September 2003 on a travel visa issued in Delhi. On 8 October 2003, he applied for a protection visa. A criterion for the grant of a protection visa, pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act "), is that the person bringing the application is a non-citizen of Australia to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees as amended. Article 1A(2) of the Convention provides that a refugee is a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 The appellant's claims in support of his application for a protection visa were somewhat vague. He claimed to have been a member of the "Muslim League" living in the Coimbatore district of Tamil Nadu, a southern state of India. He said that both his father and his brother had been heavily involved in Muslim politics. In November 1997, his father and mother were killed during religious rioting in the district. Fearing for his life, he moved to the Chennai district. He established a clothing business there. He maintained his involvement with the Muslim League. He claimed that he donated money, was involved in political rallies and that he sought to recruit new party members. He claimed that political opponents became aware of his activities and that he was threatened and "physically attacked" by these people. Nonetheless, he continued his active involvement with the Muslim League. He supported the party financially, and this may have led to a further attack upon him by his political opponents. However, he was spared any serious physical injury because of the presence, on this occasion, of a number of Muslim supporters.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: referred to
The Tribunal referred to several cases in support of these propositions. These included Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559, Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 . The Tribunal did not err in relying upon these cases, or in its formulation of the relevant legal principles. Moreover, the appellant's contention must fail by reason of the principles stated by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] [24].
Case: Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
Outcome: referred to
The Tribunal referred to several cases in support of these propositions. These included Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559, Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 . The Tribunal did not err in relying upon these cases, or in its formulation of the relevant legal principles. Moreover, the appellant's contention must fail by reason of the principles stated by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] [24].
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: referred to
The Tribunal referred to several cases in support of these propositions. These included Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559, Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 . The Tribunal did not err in relying upon these cases, or in its formulation of the relevant legal principles. Moreover, the appellant's contention must fail by reason of the principles stated by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] [24].
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: referred to
The Tribunal referred to several cases in support of these propositions. These included Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559, Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 . The Tribunal did not err in relying upon these cases, or in its formulation of the relevant legal principles. Moreover, the appellant's contention must fail by reason of the principles stated by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] [24].
Case: Re Daisytek Australia Pty Ltd (administrators appointed) (2003) 45 ACSR 446
Outcome: cited
The evidence establishes a case for the making of both orders and they should be made. An order extending the convening period, without more, would leave s 439A(2) requiring that the meeting be held within the period of five business days following the expiry of the extending convening period, and no earlier: cf Re Daisytek Australia Pty Ltd (administrators appointed) (2003) 45 ACSR 446 at [10] [14]. An order should be made, or sought, under s 447A permitting the meeting to be held during the extended convening period or within the said period of five business days thereafter. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 28 July 2006 Counsel for the Plaintiffs: Mr P M Wood Solicitor for the Plaintiffs: Blake Dawson Waldron Date of Hearing: 19, 20 July 2006 Date of Judgment: 20 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/958.html