mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Outcome: cited
further potential difficulty is whether the application which is now made to the Court should have been made by way of a new application rather than by way of Motion in the same proceeding in which North J originally made the July 2007 Order. After having referred to the ground upon which a consent order could be set aside in Harvey v Phillips , Handley JA in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 observed that "... it is also established that the jurisdiction to set aside a consent order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings ..." The difficulty could, perhaps, have been overcome by simply treating the existing Notice of Motion as a fresh proceeding: cf Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [22] , 78 ALD 151 at 158. No objection, however, was taken on behalf of the Respondent Minister to the manner in which the Applicant has proceeded and accordingly this further difficulty need not be resolved.
Case: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641
Outcome: cited
express exception set forth in the Act is s 25(2B)(bc) which permits the Court to " vary or set aside an order " made pursuant to s 25(2B)(bb), namely an order dismissing an appeal by reason of an appellant's failure to attend a hearing relating to the appeal. That power is a power conferred " in general terms " and " should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament ": SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [20] , 158 FCR 292 at 298 per Black CJ, Weinberg and Allsop JJ. As contemplated in SZISM, the power conferred by s 25(2B)(bc) is a power which can be exercised even after the orders have been entered. See also: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [1] ; Brannan v Minister for Immigration and Citizenship [2007] FCA 1900 at [3] ; SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462 at [2] .
Case: SZCZF v Minister for Immigration and Citizenship [2007] FMCA 506
Outcome: cited
Federal Magistrates Court dismissed an application seeking review of the Tribunal's second decision: SZCZF v Minister for Immigration and Citizenship [2007] FMCA 506. An Appeal was lodged with this Court on 12 April 2007. The Applicant thereafter, apparently, sought Ministerial intervention. On 6 July 2007 he signed a " Consent Order " consenting to the dismissal of his Appeal to this Court. On 9 July 2007 a Judge of this Court, North J, dismissed the Appeal by consent. That Order has been entered.
Case: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037
Outcome: cited
" very limited circumstances " envisaged by VTAG , it was contended on behalf of the Minister, were confined to those situations identified in Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235 at 243 to 244 as follows: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. See also: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037 at [8] ; Tresize v National Australia Bank Ltd [2005] FCA 1095 at [34] , 220 ALR 706 at 715.
Case: SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462
Outcome: cited
express exception set forth in the Act is s 25(2B)(bc) which permits the Court to " vary or set aside an order " made pursuant to s 25(2B)(bb), namely an order dismissing an appeal by reason of an appellant's failure to attend a hearing relating to the appeal. That power is a power conferred " in general terms " and " should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament ": SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [20] , 158 FCR 292 at 298 per Black CJ, Weinberg and Allsop JJ. As contemplated in SZISM, the power conferred by s 25(2B)(bc) is a power which can be exercised even after the orders have been entered. See also: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [1] ; Brannan v Minister for Immigration and Citizenship [2007] FCA 1900 at [3] ; SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462 at [2] .
Case: Tresize v National Australia Bank Ltd [2005] FCA 1095 , 220 ALR 706
Outcome: cited
" very limited circumstances " envisaged by VTAG , it was contended on behalf of the Minister, were confined to those situations identified in Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235 at 243 to 244 as follows: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. See also: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037 at [8] ; Tresize v National Australia Bank Ltd [2005] FCA 1095 at [34] , 220 ALR 706 at 715.
Case: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 , 141 FCR 291
Outcome: discussed
the Court may not have an " inherent power ", as a Court created by statute, it does have all the " powers expressly or by implication conferred by the legislation which govern[s] it " and has " in addition such powers as are incidental and necessary to the exercise of the jurisdiction conferred ": DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [25] , cited with approval in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [30] , [2005] FCAFC 91 ; 141 FCR 291 at 296. In VTAG , Heerey, Finkelstein and Lander JJ cited with approval the statement of Wilson and Dawson JJ in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 at 619, that the Court's " incidental and necessary powers " are " no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction ". From this, their Honours in VTAG held that the Court had power to set aside a consent order where the parties consent and had " in very limited circumstances " a power to set aside final orders made otherwise than by consent. See also: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [20] , 246 ALR 113 at 116. Section 25(2B)(bc), it was further held, did not " evince an intention that only orders under paras (ba) and (bb) can be varied or set aside ": [2005] FCAFC 91 at [32] , [2005] FCAFC 91 ; 141 FCR 291 at 295. In VTAG the Full Court concluded that there was power to set aside consent orders previously made and entered in circumstances where there was consent to the orders being set aside, there was no improper purpose and there were no rights of third parties affected. The " very limited circumstances " envisaged by VTAG , it was contended on behalf of the Minister, were confined to those situations identified in Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235 at 243 to 244 as follows: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. See also: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037 at [8] ; Tresize v National Australia Bank Ltd [2005] FCA 1095 at [34] , 220 ALR 706 at 715.
Case: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1334
Outcome: affirmed
The appellant is a citizen of India and a Christian. He applied for a protection visa alleging a well-founded fear of persecution on the ground that the Indian authorities would be unable to provide him with effective protection against Hindu extremists. His application was refused by a delegate of the Minister and on review by the Refugee Review Tribunal. An application for review to the Federal Magistrates Court was dismissed by Hartnett FM: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1334. 2 The appellant submits that the Magistrate erred in failing to find that the Tribunal committed jurisdictional error because: &#8226; there was no evidence to support a critical finding of fact by the Tribunal; and &#8226; having expressed doubt about some of its findings, the Tribunal did not proceed to consider the consequences if it were wrong. 3 The appellant also sought leave to raise grounds which were not argued before the Magistrate namely: &#8226; the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth); and &#8226; failed to deal with essential integers of the appellant's claims.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356
Outcome: applied
To succeed on the "no evidence" ground the appellant would have to show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356. Thus the question is not whether the court on judicial review would have reached the same finding on conflicting evidence. There was in the present case some evidence to support the finding, as properly understood. 18 The finding complained of must be identified accurately. In the present case the appellant's argument rests upon a misreading of the finding in question. India is a vast country. The Tribunal could not be reasonably taken as saying that it was satisfied that literally in every instance of attacks against religious minorities police across India have always taken action to respond. Viewed in context, the point the Tribunal is making is that while there is some protection generally in India against attacks against religious minorities, the position in Tamil Nadu, where the appellant comes from, is more favourable.
Case: Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443
Outcome: applied
Further, to succeed on the "no evidence" ground, the fact of which there is said to be no evidence would need to be a jurisdictional fact, that is to say "an essential preliminary to the decision-making process" as distinct from "a fact to be adjudicated upon in the course of the inquiry": Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443, VXDC [2005] FCA 1388 ; (2005) 146 FCR 562 at [13] (hereafter, unless otherwise indicated, all citations are to be taken as including the responsible Minister as a party). The fact in question would fall within the second Willan category.
Case: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [13]
Outcome: applied
Further, to succeed on the "no evidence" ground, the fact of which there is said to be no evidence would need to be a jurisdictional fact, that is to say "an essential preliminary to the decision-making process" as distinct from "a fact to be adjudicated upon in the course of the inquiry": Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443, VXDC [2005] FCA 1388 ; (2005) 146 FCR 562 at [13] (hereafter, unless otherwise indicated, all citations are to be taken as including the responsible Minister as a party). The fact in question would fall within the second Willan category.
Case: Minister for Immigration and Multicultural and Indigenous v Rajalingam [1999] FCA 719 ; (1999) 93 FCR 220 at [67]
Outcome: applied
While the Tribunal referred several times to "doubt" as to the appellant's claims, those references were to doubt about the appellant's evidence, not about the Tribunal's satisfaction as to its own findings: Rajalingam ( 1999) [1999] FCA 719 ; 93 FCR 220 at [67] , cited by the Magistrate at [44].
Case: Guo v Minister for Immigration and Multicultural and Indigenous Affairs [1997] HCA 22 ; (1997) 191 CLR 559 at 574
Outcome: applied
In any event, the Tribunal had an alternative basis for its ultimate non-satisfaction as to the protection visa criteria. The Tribunal did not rely only on its findings as to the appellant's lack of credibility on his account of alleged past events. The Tribunal said that, notwithstanding the rejection of most of his evidence about the adverse consequences of his involvement in Christian evangelism in the past, its focus must be on what would follow his return to India in the reasonably foreseeable future. This was correct. The fundamental task of the Tribunal was to form an opinion as to what was likely to happen to the appellant if he returned to India: Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 574. What had happened to him in the past in that country was a relevant, but not essential step: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [192] .
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [192]
Outcome: applied
In any event, the Tribunal had an alternative basis for its ultimate non-satisfaction as to the protection visa criteria. The Tribunal did not rely only on its findings as to the appellant's lack of credibility on his account of alleged past events. The Tribunal said that, notwithstanding the rejection of most of his evidence about the adverse consequences of his involvement in Christian evangelism in the past, its focus must be on what would follow his return to India in the reasonably foreseeable future. This was correct. The fundamental task of the Tribunal was to form an opinion as to what was likely to happen to the appellant if he returned to India: Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 574. What had happened to him in the past in that country was a relevant, but not essential step: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [192] .
Case: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [19]
Outcome: applied
First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 45 In SZCJD [2006] FCA 609 I rejected a s 424A argument primarily because the protection visa application and its characterisation as vague and general were not the Tribunal's reason or part of its reason for its decision. I held (at [42]) that in any event s 424A(3)(b) applied as the applicant had given the information in the course of answering the question put by the Tribunal.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: discussed
First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 35 In SZEEU [2006] FCAFC 2 a Full Court dealt with five cases raising s 424A points. In one of these cases, the appeal in SZBMI , the appellant had said in his protection visa application that he had fled from Bangladesh (referred to in the case as "the flight information"). This was drawn to the appellant's attention by the Tribunal but no particulars in writing were given. The Tribunal recorded that the appellant had confirmed at the hearing that he had read his protection visa application statement before signing it and that it was true and correct.
Case: Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: discussed
First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 25 However, subs (3) provides that the section does not apply to certain sorts of information, including information "(b) that the applicant gave for the purpose of the application". In Al Shamry the Full Court held that "the application" means the application for review by the Tribunal and does not include the information given by the applicant for the purposes of the initial visa application to the Department. In SAAP a majority of the High Court held that if s 424A(1) applies, the obligation is not satisfied by putting the information orally to the applicant in the course of the Tribunal hearing. 32 In NAZY [2005] FCA 744 the appellant had made a certain statement in answer to a question in his protection visa application form. The Tribunal in the course of the hearing referred to an inconsistency between the answer to that question and the appellant's oral evidence before the Tribunal as one of the reasons for rejecting his claim. The inconsistency was put orally to the appellant in the course of the hearing. Jacobson J held that s 424A(1) was not complied with. It was put to his Honour that Al Shamry was distinguishable because the appellant had referred to the protection visa application form when asked about it by the Tribunal and said that the information in it was true and correct. Counsel for the Minister relied on Gray J's decision in M55.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: discussed
First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 25 However, subs (3) provides that the section does not apply to certain sorts of information, including information "(b) that the applicant gave for the purpose of the application". In Al Shamry the Full Court held that "the application" means the application for review by the Tribunal and does not include the information given by the applicant for the purposes of the initial visa application to the Department. In SAAP a majority of the High Court held that if s 424A(1) applies, the obligation is not satisfied by putting the information orally to the applicant in the course of the Tribunal hearing. 30 I therefore accept that the Tribunal failed to comply with s 424A(1). The critical question then becomes whether the information in question fell within the exception created by s 424A(3)(b). If it did not, jurisdictional error will have been established: SAAP . It will be necessary to look at some of the recent authorities dealing with subs (3).