mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Raheem v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 940
Outcome: cited
Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn. Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. (i) Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court: VDAU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 32 at [24] ; see also Raheem v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 940 at [31] . (ii) Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal: VBAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307 at [20] - [28] . (iii) Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271. (iv) The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded: M66 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 112 at [13] . (v) The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution: Ratnayake v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1141. What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a "real chance" of persecution for a Convention reason if that person is returned: Ratnayake ; Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20] .
Case: VBAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307
Outcome: applied
Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn. Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. (i) Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court: VDAU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 32 at [24] ; see also Raheem v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 940 at [31] . (ii) Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal: VBAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307 at [20] - [28] . (iii) Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271. (iv) The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded: M66 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 112 at [13] . (v) The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution: Ratnayake v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1141. What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a "real chance" of persecution for a Convention reason if that person is returned: Ratnayake ; Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20] .
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn. Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. (i) Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court: VDAU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 32 at [24] ; see also Raheem v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 940 at [31] . (ii) Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal: VBAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307 at [20] - [28] . (iii) Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271. (iv) The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded: M66 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 112 at [13] . (v) The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution: Ratnayake v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1141. What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a "real chance" of persecution for a Convention reason if that person is returned: Ratnayake ; Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20] .
Case: M66 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 112
Outcome: applied
Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn. Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. (i) Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court: VDAU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 32 at [24] ; see also Raheem v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 940 at [31] . (ii) Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal: VBAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307 at [20] - [28] . (iii) Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271. (iv) The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded: M66 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 112 at [13] . (v) The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution: Ratnayake v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1141. What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a "real chance" of persecution for a Convention reason if that person is returned: Ratnayake ; Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20] .
Case: Ratnayake v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1141
Outcome: applied
Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn. Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. (i) Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court: VDAU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 32 at [24] ; see also Raheem v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 940 at [31] . (ii) Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal: VBAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307 at [20] - [28] . (iii) Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271. (iv) The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded: M66 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 112 at [13] . (v) The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution: Ratnayake v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1141. What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a "real chance" of persecution for a Convention reason if that person is returned: Ratnayake ; Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20] .
Case: Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666
Outcome: cited
Accepting that a jurisdictional error can be inferred from a conclusion reached despite factual findings, this is not a matter in which such an inference can be drawn. Before indicating why this is so it is appropriate to refer to some well accepted principles that are applied when challenging on grounds of jurisdictional error determinations that a person does not satisfy the definition of a refugee for the purposes of the Migration Act. (i) Whether particular conduct of which a person is shown to have a well-founded fear is sufficiently serious and significant as to constitute persecution properly understood, is a question of fact and degree for the Tribunal not the Court: VDAU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 32 at [24] ; see also Raheem v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 940 at [31] . (ii) Whether threats of future harm are genuine and are sufficiently serious as to be capable of amounting to persecution (if intended to be acted upon and not merely to intimidate) are likewise questions of fact and degree for the Tribunal: VBAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 212 ; (2005) 216 ALR 307 at [20] - [28] . (iii) Where the Tribunal has correctly formulated the test to be applied, a court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what it has written: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271. (iv) The ultimate question for the Tribunal looks to the future and requires it to consider whether the fear of persecution upon return to the country in question is well founded: M66 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 112 at [13] . (v) The Tribunal is not required, as an essential part of reaching its conclusion on whether a person has a well-founded fear of persecution, to characterise past acts complained of as persecution: Ratnayake v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1141. What has happened in the past may explain a present subjective fear and be a matter to be taken into account in the predictive exercise of determining whether there is a "real chance" of persecution for a Convention reason if that person is returned: Ratnayake ; Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 at [20] .
Case: Das v Minister for Immigration &amp; Multicultural Affairs (2004) 208 ALR 229
Outcome: referred to
These conclusions fell well within the Tribunal's proper province. It made its judgment of the significance, seriousness and, in the case of the threats, the purpose of the conduct in question. As Sundberg J said in Das v Minister for Immigration &amp; Multicultural Affairs (2004) 208 ALR 229 at [23]: "That the Court might not itself have taken the same view of the facts as the Tribunal does not establish error". No reviewable error has been disclosed. 28 Distinctly, the appellant claims that the Tribunal misunderstood the "official quality" that may be required in the course of persecution such as to constitute a person a refugee under the Convention. I already have indicated that the Tribunal's understanding of what was comprehended by the "official quality" requirement as expressly explained in its Reasons, was orthodox and unobjectionable. Before referring again to this matter towards the end of its reasons, the Tribunal found that despite his fears of harm at the hands of UNP supporters, the appellant could access and be provided with adequate State protection. It is in this context that its comments on "official quality" are to be considered when it indicated that the harm the appellant fears from UNP supporters did not have an official quality.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487
Outcome: applied
On a fair reading of the Tribunal's reasons, it is apparent that the Tribunal was intending to signify that such violence as occurs between members or supporters of political parties (which was the essence of the appellant's claims about the UNP supporters) did not amount to persecution, first because such violence was not official, or officially tolerated or uncontrollable by the State and secondly, because it lacked the selective or discriminatory quality which is inherent in the notion of persecution. While each of these reasons was sufficient to justify a conclusion adverse to the appellant, the latter, the State protection finding, was independently dispositive of the appellant's entire claim in the circumstances: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487; SZBOT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 411 ; Applicant VFAH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1018.
Case: SZBOT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 411
Outcome: cited
On a fair reading of the Tribunal's reasons, it is apparent that the Tribunal was intending to signify that such violence as occurs between members or supporters of political parties (which was the essence of the appellant's claims about the UNP supporters) did not amount to persecution, first because such violence was not official, or officially tolerated or uncontrollable by the State and secondly, because it lacked the selective or discriminatory quality which is inherent in the notion of persecution. While each of these reasons was sufficient to justify a conclusion adverse to the appellant, the latter, the State protection finding, was independently dispositive of the appellant's entire claim in the circumstances: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487; SZBOT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 411 ; Applicant VFAH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1018.
Case: Applicant VFAH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1018 
Outcome: cited
On a fair reading of the Tribunal's reasons, it is apparent that the Tribunal was intending to signify that such violence as occurs between members or supporters of political parties (which was the essence of the appellant's claims about the UNP supporters) did not amount to persecution, first because such violence was not official, or officially tolerated or uncontrollable by the State and secondly, because it lacked the selective or discriminatory quality which is inherent in the notion of persecution. While each of these reasons was sufficient to justify a conclusion adverse to the appellant, the latter, the State protection finding, was independently dispositive of the appellant's entire claim in the circumstances: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487; SZBOT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 411 ; Applicant VFAH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1018.
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: applied
So far as the principles governing the grant of leave are concerned, all I need note for present purposes are: (i) leave to argue a new ground of appeal should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; and (ii) in considering whether it is so in the interests of justice, it is necessary to give some consideration to the merits of the grounds proposed to determine whether they have a reasonable prospect of success: Iyer v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1788 at [22] - [24] .
Case: Iyer v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1788
Outcome: applied
So far as the principles governing the grant of leave are concerned, all I need note for present purposes are: (i) leave to argue a new ground of appeal should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; and (ii) in considering whether it is so in the interests of justice, it is necessary to give some consideration to the merits of the grounds proposed to determine whether they have a reasonable prospect of success: Iyer v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1788 at [22] - [24] .
Case: NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134
Outcome: cited
It has not been suggested in this matter that the respondent would be prejudiced by the grant of leave, nor is it said that there is no acceptable explanation for the issue not being previously raised: cf NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134 at [166] .
Case: Webb v R [1994] HCA 30 ; (1994) 181 CLR 41
Outcome: followed
First, reasonably apprehended bias . The test of whether the Tribunal member was disqualified from hearing the appellant's application for review on this basis is not in issue between the parties. Both are content for present purposes to rely upon that of Deane J in Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68. It is: "whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue." Though the subject of the reasonable apprehension need only be of a possibility of bias, that reasonable apprehension must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546, at 553. In a case such as the present involving the significance to be attributed in the circumstances to expressed views, it is insufficient to demonstrate merely "a sense of unease or a feeling that conventions of discretion and prudence have been breached": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Epeabaka , at [90]. What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant's case because of "preconceptions existing independently of the case": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 372 - because of prejudgment or predisposition: Ex parte Epeabaka , at [21]. I will for convenience refer to this as "issue bias".