mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211
Outcome: followed
In view of my decision with respect to evidence in this case, it is not strictly necessary for me to consider the alternative issues raised by the appellant with respect to Wednesbury unreasonableness and irrationality and want of logic of the Tribunal's decision. However, I note the findings of his Honour below that reasoning of the Tribunal was neither illogical nor irrational and, having reviewed the decision of the Tribunal, consider that there is no error in his Honour's findings in relation to these contentions. In any event, these grounds do not appear to support claims of jurisdictional defect in terms of Australian law. In particular, I note the decision of the Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 with respect to Wednesbury unreasonableness, and the decisions of the High Court in Bond 170 CLR (particularly per Mason CJ at 356 with whom, on this point, Brennan, Toohey and Gaudron JJ agreed) and the Full Court in VWST [2004] FCAFC 286 that want of logic does not form a valid basis of judicial review.
Case: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: cited
At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
An administrative decision made on the basis of no evidence is invalid: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473 per Barwick CJ at 479-480, Gibbs J at 483, Stephen J at 485, Murphy J at 488; Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12 at [39] - [41] . This may be contrasted with a decision against the evidence or the weight of the evidence, which does not form the basis of jurisdictional error: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601. 34 In view of my decision with respect to evidence in this case, it is not strictly necessary for me to consider the alternative issues raised by the appellant with respect to Wednesbury unreasonableness and irrationality and want of logic of the Tribunal's decision. However, I note the findings of his Honour below that reasoning of the Tribunal was neither illogical nor irrational and, having reviewed the decision of the Tribunal, consider that there is no error in his Honour's findings in relation to these contentions. In any event, these grounds do not appear to support claims of jurisdictional defect in terms of Australian law. In particular, I note the decision of the Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 with respect to Wednesbury unreasonableness, and the decisions of the High Court in Bond 170 CLR (particularly per Mason CJ at 356 with whom, on this point, Brennan, Toohey and Gaudron JJ agreed) and the Full Court in VWST [2004] FCAFC 286 that want of logic does not form a valid basis of judicial review.
Case: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Outcome: cited
An administrative decision made on the basis of no evidence is invalid: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473 per Barwick CJ at 479-480, Gibbs J at 483, Stephen J at 485, Murphy J at 488; Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12 at [39] - [41] . This may be contrasted with a decision against the evidence or the weight of the evidence, which does not form the basis of jurisdictional error: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12
Outcome: cited
An administrative decision made on the basis of no evidence is invalid: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473 per Barwick CJ at 479-480, Gibbs J at 483, Stephen J at 485, Murphy J at 488; Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12 at [39] - [41] . This may be contrasted with a decision against the evidence or the weight of the evidence, which does not form the basis of jurisdictional error: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.
Case: re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50
Outcome: cited
As a general proposition, it is true that: &#8226; it is for the appellant to advance whatever evidence or argument he wishes to advance in support of his claim ( Abebe v Commonwealth (1999) 197 CLR at 576, re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] ), and &#8226; as made clear by the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , a finding of fact will only go to jurisdiction if that finding was not open on the evidence.
Case: re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128
Outcome: cited
At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. 32 As a general proposition, it is true that: &#8226; it is for the appellant to advance whatever evidence or argument he wishes to advance in support of his claim ( Abebe v Commonwealth (1999) 197 CLR at 576, re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] ), and &#8226; as made clear by the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , a finding of fact will only go to jurisdiction if that finding was not open on the evidence.
Case: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473
Outcome: cited
An administrative decision made on the basis of no evidence is invalid: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473 per Barwick CJ at 479-480, Gibbs J at 483, Stephen J at 485, Murphy J at 488; Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12 at [39] - [41] . This may be contrasted with a decision against the evidence or the weight of the evidence, which does not form the basis of jurisdictional error: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.
Case: Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424
Outcome: referred to
rules of natural justice require that a person making a determination as to whether an APS employee has breached the Code of Conduct must be unbiased and free from any reasonable apprehension of bias. A decision-maker will be biased if he or she does not approach the decision-making task entrusted to him or her with an open mind which is open to persuasion one way or the other. If a decision-maker has pre-judged a case so as to be unable or unwilling to decide it impartially, that decision-maker's determination will be affected by actual bias (see per Stone J, with whose reasons Hill J agreed, in Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424 at [79] ). The requirement that justice should both be done and be seen to be done is one which reflects the fundamental importance of the principle that a decision-maker determining whether or not the Code of Conduct has been breached be independent and impartial ('unbiased').
Case: Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438
Outcome: referred to
an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the making of the decision. In deciding such a matter, the Court determines the issues objectively (see per McHugh J in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 ('Hot Holdings) at [68] where his Honour effectively paraphrased what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ('Re RRT; Ex parte H') at [27]-[28]). While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different (per McHugh J in Hot Holdings at [70]).
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the making of the decision. In deciding such a matter, the Court determines the issues objectively (see per McHugh J in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 ('Hot Holdings) at [68] where his Honour effectively paraphrased what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 ('Re RRT; Ex parte H') at [27]-[28]).
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
justice and fairness are not to be equated. In the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness (per Mason J, as his Honour then was, in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ('Kioa v West') at 583). In most cases the critical question is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 at 504, per Mason J in Kioa v West at 585 and per Ellicott J in Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287 ; see also In re Pergamon Press Ltd [1971] 1 Ch 388). The expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the Act seeks to advance or protect or permits to be taken into account as legitimate considerations (per Mason J in Kioa v West at 585 cf Salemi v MacKellar [No. 2] [1977] HCA 26 ; (1977) 137 CLR 396 at 451 per Jacobs J).
Case: Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475
Outcome: referred to
most cases the critical question is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 at 504, per Mason J in Kioa v West at 585 and per Ellicott J in Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287 ; see also In re Pergamon Press Ltd [1971] 1 Ch 388).
Case: Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287
Outcome: referred to
most cases the critical question is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 at 504, per Mason J in Kioa v West at 585 and per Ellicott J in Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287 ; see also In re Pergamon Press Ltd [1971] 1 Ch 388). In circumstances where no formal hearing was held in relation to the suspected breaches by Mr Lohse of the Code of Conduct and he was without an opportunity to test evidence provided to the decision-maker by others, it was essential, in my opinion, that he knew what was being put to the decision-maker, by, in particular, the complainant Ms Barclay, against himself. Mr Lohse was entitled to know about material that was clearly put against him (see by way of analogy Finch v Goldstein ). As procedural fairness is directed to the obligation to give a person such as Mr Lohse a fair go, it is necessary to begin by looking at what procedural fairness required the relevant decision-maker to do in the course of conducting the process of determining whether Mr Lohse had breached the code of conduct. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached. If adverse information that was credible, relevant and significant to the determination to be made by the decision-maker was placed before the decision-maker it would be unfair to deny a person such as Mr Lohse an opportunity to deal with it where there was a real risk of prejudice, albeit subconscious, arising from the decision-maker's possession of the relevant information.
Case: In re Pergamon Press Ltd [1971] 1 Ch 388
Outcome: referred to
most cases the critical question is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 at 504, per Mason J in Kioa v West at 585 and per Ellicott J in Finch v Goldstein [1981] FCA 132 ; (1981) 36 ALR 287 ; see also In re Pergamon Press Ltd [1971] 1 Ch 388).
Case: Salemi v MacKellar [No. 2] [1977] HCA 26 ; (1977) 137 CLR 396
Outcome: referred to
expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the Act seeks to advance or protect or permits to be taken into account as legitimate considerations (per Mason J in Kioa v West at 585 cf Salemi v MacKellar [No. 2] [1977] HCA 26 ; (1977) 137 CLR 396 at 451 per Jacobs J).
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: referred to
is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice (per Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 ('Lam') at [37]). The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 ('Aala') at [62]; see also per McHugh and Gummow JJ in Lam at [48]).
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: referred to
content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 ('Aala') at [62]; see also per McHugh and Gummow JJ in Lam at [48]).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: referred to
before a decision-maker engaged in determining whether an APS employee has breached the Code of Conduct are not adversarial but inquisitorial. Such a decision-maker is an inquisitor obliged to be fair. In my opinion, such a decision-maker is not required to carry out an inquiry in order to identify what the case of an employee suspected of breaching the Code of Conduct might be (see by way of analogy Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [36] ).
Case: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151
Outcome: referred to
decision-maker engaged in determining whether an APS employee has breached the Code of Conduct has no general obligation to initiate inquiries or to make out a case for an APS employee in Mr Lohse's position. It is only in rare or exceptional circumstances that a decision-maker's failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ('Wednesbury') (See Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 ('Le')) or may allow a conclusion that there was a constructive failure to exercise jurisdiction on the part of the decision-maker (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [24]-[26]). For there to be a finding of jurisdictional error in this regard one would need to find a failure to make an obvious inquiry about a critical fact. Le was a case where the circumstances were rare or exceptional. In Le reliance had been placed by the Refugee Review Tribunal upon a transcript of a five and a half hour interview which had been recorded on seven only pages of notes. Kenny J referred to the fact that there had been a mistranslation which meant that the significance of the primary decision-maker's decision record and the typed notes of interview were doubtful or uncertain in a number of critical respects. The mistranslation raised several uncertainties.
Case: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Outcome: referred to
decision-maker engaged in determining whether an APS employee has breached the Code of Conduct has no general obligation to initiate inquiries or to make out a case for an APS employee in Mr Lohse's position. It is only in rare or exceptional circumstances that a decision-maker's failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ('Wednesbury') (See Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 ('Le')) or may allow a conclusion that there was a constructive failure to exercise jurisdiction on the part of the decision-maker (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [24]-[26]). For there to be a finding of jurisdictional error in this regard one would need to find a failure to make an obvious inquiry about a critical fact.
Case: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14
Outcome: referred to
v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14 was another case where the circumstances were rare or exceptional. In that case a coversheet together with a five page submission had apparently been forwarded by facsimile to the Refugee Review Tribunal in response to a s 424A letter under the Migration Act 1958 (Cth) inviting comment on certain information, but only the cover sheet was received. Allsop J, as his Honour then was, held that it was a case where the Tribunal needed to see and should have inquired about the absence of the missing five page submission.