mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: applied
FM was of the view that there was no information that would come under the purview of section 424A(1) of the Act and he observed, at [26], that the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] is authority for the proposition that inconsistencies in an applicant's evidence do not amount to information for the purposes of section 424A. The third ground of review was that the Tribunal made its finding without any substantial ground apart from its assumption. Scarlett FM, at [27], was of the view that this ground could not be maintained because it was an attempt to seek merits review which, of course, is not available in the Federal Magistrates Court. It is well established that the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in it cannot be characterised as constituting "information" within section 424A(1): see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. Accordingly, this ground of appeal must also be rejected. The third ground of appeal was said to be unfairness. The appellant claimed that she had been treated unfairly, because the Tribunal described her evidence as "vague". This is not an accurate description of the Tribunal's reasons. As I said earlier, it rejected the appellant as a witness of truth. It said, at [70], that its: ...overall impression is that the Applicant has taken a couple of true facts from her past and, possibly with external assistance, ... heavily interlaced them with false information.
Case: SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270
Outcome: followed
this issue is approached upon the basis of a claimed contravention of section 424A(1) or section 424AA , the result is the same. There is authority for the proposition that "information" in section 424AA has the same meaning as "information" under section 424A: SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J.
Case: Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510
Outcome: cited
In relation to the first ground of appeal it is clear that the Tribunal had informed the appellant that it was unable to make a decision in his favour on the basis of the material before it. The Tribunal observed in its reasons for decision that the appellant neither sent further material, nor took the opportunity to attend a hearing and present his claims orally. The learned Federal Magistrate correctly pointed out that a visa must only be granted where the Minister is satisfied the prescribed criteria has been fulfilled ( SZGFG v Minister for Immigration and Citizenship [2007] FCA 483). Further, it is clear that it is for the applicant before the Tribunal to make his or her case to the Tribunal the Tribunal is under no obligation to make the case for the applicant ( Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576). The Tribunal made a decision based on such material as was before it, and the appellant cannot now claim that the Tribunal erred in making that decision.
Case: Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211
Outcome: cited
In relation to the appellant's third ground of appeal, the appellant has not provided any particulars to explain this ground or as to why the Tribunal's decision was unreasonable. In any event, to the extent that the appellant claims unreasonableness in accordance with the principles articulated in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223, I note that the Full Court has found that "unreasonableness" does not constitute jurisdictional defect (see Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918). Accordingly, the appellant's third ground of appeal is not substantiated.
Case: Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223
Outcome: cited
In relation to the appellant's third ground of appeal, the appellant has not provided any particulars to explain this ground or as to why the Tribunal's decision was unreasonable. In any event, to the extent that the appellant claims unreasonableness in accordance with the principles articulated in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223, I note that the Full Court has found that "unreasonableness" does not constitute jurisdictional defect (see Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918). Accordingly, the appellant's third ground of appeal is not substantiated.
Case: BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734
Outcome: related
The appellant appeals to this Court from a decision of Jarret FM dated 26 May 2008 ( BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734). In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 January 2008. The Tribunal had affirmed a decision of a delegate of the first respondent dated 19 October 2008 wherein the delegate refused the grant of a protection (class XA) visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act). 2 The appellant is a citizen of the Republic of Indonesia. He arrived in Australia on 26 August 2007 on a Subclass 456 Temp Business Visa and applied for a protection (class XA) visa on 20 September 2007. The appellant claimed to have suffered persecution from the current Indonesian government on the basis that he expressed a preference for the former Indonesian leader, Mr Soeharto. 3 The appellant claims he was imprisoned in Indonesia for a one month period because he had been critical of the new Indonesian government and expressed a preference for Mr Soeharto. The appellant asserts that following his graduation from University, the police visited him frequently. On one occasion the police came to his house and asked him what he thought of the Indonesian government. When he answered that he hated the new government, he was beaten, arrested and imprisoned for one month. 21 The appellant's second ground of appeal is identical to the first ground of review before Jarrett FM. In that case his Honour said at [12]: The first ground of the current application perhaps highlights the difficulty for the applicant, namely that there was no evidence or other materials to justify the making of the decision. In my view there was no evidence or other materials before the Refugee Review Tribunal that would justify making a decision other than the decision that it made in the circumstances of this case. ( BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734)
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: cited
I agree with the comments of Jarrett FM. The difficulty faced by the appellant in establishing jurisdictional error in relation to this ground of appeal is that the lack of evidence before the Tribunal was the very reason why the application was dismissed. This ground of appeal is not an allegation of jurisdictional error. Instead, the appellant is seeking to reopen the decision of the Tribunal. The Court cannot engage in review of the merits of the appellant's case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . 23 In my view the appellant's second ground of appeal is not substantiated.
Case: QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918
Outcome: cited
In relation to the appellant's third ground of appeal, the appellant has not provided any particulars to explain this ground or as to why the Tribunal's decision was unreasonable. In any event, to the extent that the appellant claims unreasonableness in accordance with the principles articulated in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223, I note that the Full Court has found that "unreasonableness" does not constitute jurisdictional defect (see Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918). Accordingly, the appellant's third ground of appeal is not substantiated.
Case: S157/2002 v Commonwealth (2003) 211 CLR 476
Outcome: cited
The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is that of jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. 18 In my view the grounds of appeal stated in the appellant's Notice of Appeal are without substance. No error in the decision of the Federal Magistrate has been demonstrated by the appellant. I form this view for the following reasons.
Case: SZGFG v Minister for Immigration and Citizenship [2007] FCA 483
Outcome: cited
In relation to the first ground of appeal it is clear that the Tribunal had informed the appellant that it was unable to make a decision in his favour on the basis of the material before it. The Tribunal observed in its reasons for decision that the appellant neither sent further material, nor took the opportunity to attend a hearing and present his claims orally. The learned Federal Magistrate correctly pointed out that a visa must only be granted where the Minister is satisfied the prescribed criteria has been fulfilled ( SZGFG v Minister for Immigration and Citizenship [2007] FCA 483). Further, it is clear that it is for the applicant before the Tribunal to make his or her case to the Tribunal the Tribunal is under no obligation to make the case for the applicant ( Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576). The Tribunal made a decision based on such material as was before it, and the appellant cannot now claim that the Tribunal erred in making that decision.
Case: Applicant M70 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 132
Outcome: referred to
At [22] Scarlett FM observed that delay has always been a bar to relief of the kind sought in the present matter, citing Applicant M70 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 132 (" Applicant M70") and Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 (" Marks") at 495-6 per McHugh J. The learned Magistrate also made reference to S58 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 283 (" S58 "), emphasising that in S58 the Full Court had held it was open to the trial judge in that case to characterise the appellant's delay as poorly or unsatisfactorily explained.
Case: Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135
Outcome: referred to
In Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [51] [60], Gaudron and Gummow JJ set out what their Honours considered to be the correct approach to the exercise of the discretion to refuse constitutional relief under s 75(v) of the Constitution . 27 It should be noted that at [55] their Honours pointed out that the discretion to refuse relief is not to be exercised lightly. This is borne out by the observations of Gaudron J in Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at [56] which were set out. Guidance is also obtained from the quoted remarks of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Concilation and Arbitration; Ex Parte Ozone Theatres (Aust) Limited [1949] HCA 33 ; (1949) 78 CLR 389 at 400 where, after referring to "unwarrantable delay", their Honours said:- "... the court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
Case: Gararth v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 316
Outcome: referred to
In Gararth v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 316 , Wilcox J said at [62] that there is ample authority for the proposition that excessive, unexplained delay will justify the refusal of relief. As to the length of time which will be considered excessive, his Honour said that it must always be necessary for the Court to examine all of the circumstances of the case. 31 Wilcox J went on to say that there is no rigid rule about the length of delay, although a delay of five years would ordinarily be difficult to excuse and two years would require explanation; see at [62] [63]. His Honour referred to the observations of McHugh J in Marks and Madgwick J at first instance in S58 ; see [2004] FCA 451.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
It follows from what I have said, that the discretion to refuse relief miscarried within the well known principle stated in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 505. It was not open to the learned Federal Magistrate to find that the appellant's delay was lengthy or unsatisfactory upon the basis of untested statements made from the bar table. 46 I will make orders setting aside the orders of the Federal Magistrate and remitting the proceeding to the Federal Magistrates Court. It will of course be a matter for that Court as to whether it is heard by the same or another Federal Magistrate. 47 The appellant sought to tender a bundle of documents as fresh evidence on the appeal. I have considered the documents and in my opinion, they fail the test stated in the well known authorities. I would not admit these documents under s 27 of the Federal Court of Australia Act 1976 (Cth).
Case: R v Commonwealth Court of Concilation and Arbitration; Ex Parte Ozone Theatres (Aust) Limited [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: referred to
It should be noted that at [55] their Honours pointed out that the discretion to refuse relief is not to be exercised lightly. This is borne out by the observations of Gaudron J in Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at [56] which were set out. Guidance is also obtained from the quoted remarks of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Concilation and Arbitration; Ex Parte Ozone Theatres (Aust) Limited [1949] HCA 33 ; (1949) 78 CLR 389 at 400 where, after referring to "unwarrantable delay", their Honours said:- "... the court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
Case: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185
Outcome: referred to
Their Honours referred at [51] to the statement of Gibbs CJ in R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185 at 194 that if a clear case of want or excess of jurisdiction is made out, the writ will issue almost as of right but the Court retains its discretion to refuse relief if in all the circumstances that seems proper. Gaudron and Gummow JJ said at [52] that this should be accepted as the correct approach. 26 Their Honours went on to say at [53] that the recognition of the discretion involves two separate questions. The first is whether the officer in question has acted in want of or in excess of jurisdiction. It is clear from what their Honours said at [54] that the same principles apply to the grant of all constitutional writs under s 75(v).
Case: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: referred to
At [22] Scarlett FM observed that delay has always been a bar to relief of the kind sought in the present matter, citing Applicant M70 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 132 (" Applicant M70") and Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 (" Marks") at 495-6 per McHugh J. The learned Magistrate also made reference to S58 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 283 (" S58 "), emphasising that in S58 the Full Court had held it was open to the trial judge in that case to characterise the appellant's delay as poorly or unsatisfactorily explained. 31 Wilcox J went on to say that there is no rigid rule about the length of delay, although a delay of five years would ordinarily be difficult to excuse and two years would require explanation; see at [62] [63]. His Honour referred to the observations of McHugh J in Marks and Madgwick J at first instance in S58 ; see [2004] FCA 451. 32 Although in Marks at [16] McHugh J considered a delay of 17 months to be inexcusable, it should be noted that his Honour's observations were about a person who "with knowledge of the decision" delayed for that period before seeking relief.
Case: Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
In Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [51] [60], Gaudron and Gummow JJ set out what their Honours considered to be the correct approach to the exercise of the discretion to refuse constitutional relief under s 75(v) of the Constitution .
Case: S58 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 283
Outcome: referred to
At [22] Scarlett FM observed that delay has always been a bar to relief of the kind sought in the present matter, citing Applicant M70 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 132 (" Applicant M70") and Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 (" Marks") at 495-6 per McHugh J. The learned Magistrate also made reference to S58 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 283 (" S58 "), emphasising that in S58 the Full Court had held it was open to the trial judge in that case to characterise the appellant's delay as poorly or unsatisfactorily explained.
Case: S58 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 451
Outcome: cited
Wilcox J went on to say that there is no rigid rule about the length of delay, although a delay of five years would ordinarily be difficult to excuse and two years would require explanation; see at [62] [63]. His Honour referred to the observations of McHugh J in Marks and Madgwick J at first instance in S58 ; see [2004] FCA 451.
Case: Xie v Minister for Immigration and Multicultural Affairs [1999] FCA 1480 ; (1999) 95 FCR 543
Outcome: cited
The learned Federal Magistrate recorded a concession made by the Minister's counsel that the RRT had failed to comply with the requirements of the Act to provide the appellant with an opportunity to be heard. Reference was made to Xie v Minister for Immigration and Multicultural Affairs [1999] FCA 1480 ; (1999) 95 FCR 543 in which Cooper J held that an applicant's failure to respond to an invitation does not entitle the RRT to assume that the person does not wish to attend. Federal Magistrate Scarlett also recorded the Minister's concession that this was an error going to jurisdiction. 14 His Honour then referred at [15] [16] to the Minister's submission that relief should be refused on discretionary grounds because of the appellant's "unwarrantable" and "extraordinary" delay. 15 The Federal Magistrate noted that the appellant did not file written submissions. However, his Honour recorded what he apparently considered to be the substance of the appellant's oral submissions. Most of what was recorded by the Federal Magistrate at [17] [21] consisted of evidence given to the Federal Magistrate from the bar table. There is no suggestion that the appellant filed any affidavit evidence or that he entered the witness box. 16 At [17] the learned Federal Magistrate states that the appellant told the Court that he was not aware of the decision of the RRT until it was translated for him at Court. That was, clearly enough, a reference to the hearing before the Federal Magistrate on 28 November 2005. 17 The Federal Magistrate went on to record at [18] that the appellant said that he did not attend the hearing, that is to say the hearing before the RRT, because he did not receive a letter notifying him, otherwise he would have gone. 18 The Federal Magistrate also recorded at [18] that the appellant said that when he was in immigration detention, he wanted to bring a case but he did not have money for a lawyer. 19 At [19] the learned Federal Magistrate recorded that the appellant had said he believed he had been placed in detention "because he had become illegal" and that he had only commenced the proceeding after he was interviewed by Chinese Government officials. This had caused him to fear persecution if he was returned to China.
Case: SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814
Outcome: followed
SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814 , which was also an application for leave to appeal, I stated the following at paragraphs 15 to 17: Applications for leave to appeal may be heard either by a Full Court or by a single judge: s 25(2)(a) Federal Court of Australia Act 1976 (Cth). The principles relevant to a grant of leave are not in doubt, the root authority being D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397. Those principles are, firstly, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being considered by the Full Court and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. Later in time and in the context of an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application for the judicial review of a decision of the Tribunal, Hely J remarked in NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 at [12] that an applicant "had to show an arguable case that the RRT's decision should be quashed on the grounds of jurisdictional error". Whether a judgment is interlocutory, rather than final, and hence requires a grant of leave to appeal by virtue of s 24(1A) of the Federal Court of Australia Act is sometimes a question of considerable nicety. It is the legal effect of a judgment, rather than its practical effect, that is determinative of the question whether a judgment is final or interlocutory. The present case nicely illustrates the point. The refusal by the Federal Magistrates Court on 12 November 2007 to set aside the order of dismissal made on 12 October 2007 and to reopen the proceeding for the judicial review of the Tribunal's decision did not have the legal effect of finally determining as between the Applicant and the Minister the merits of that proceeding. However, the practical effect of the refusal to reopen was to leave in place the order of dismissal of the challenge to the Tribunal's decision. That, in turn, had the practical effect of leaving standing the decision of the Tribunal affirming the refusal to grant the Applicant a protection visa. An appreciation of the practical effect that some, strictly interlocutory judgments may nonetheless have led Branson J in Johnston v Comcare [2002] FCAFC 251 ; (2002) 124 FCR 160 at [8] to observe that leave to appeal is more readily granted where a decision, if allowed to stand, will have "the practical effect" of determining a claim of an applicant to be entitled to an order, rather than in a case concerning practice and procedure only. I have approached the question of whether to grant leave in this case with this sentiment in mind. In the present case, the refusal by the Federal Magistrates Court to set aside the earlier order of dismissal had exactly the same practical effect, so far as the Applicant is concerned, to that which I have described in the passage quoted. I therefore take into account all of the principles set out in the passage quoted in deciding this application.