mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZHAY v Minister for Immigration [2006] FMCA 261
Outcome: approved
The appellant submits that the Tribunal erred in so doing. Once the Tribunal held that the conduct in question was to be disregarded due to s 91R(3) , it had to disregard that conduct for all aspects of its decision. The appellant relies on two authorities to support his construction of s 91R(3) , both decisions of Driver FM: SZHAY v Minister for Immigration [2006] FMCA 261 and SZJSD v Minister for Immigration [2007] FMCA 604. 40 I agree with the respondent's analysis that the Tribunal rejected the appellant's sur place motivations and beliefs, but did not have relevant regard to his conduct, as an indicator of a likely "higher profile" if returned to China than he previously had there (on the Tribunal's findings). I accept, as the respondent seems to have done sub silentio , that Driver FM's point in SZHAY [2006] FMCA 261 and SZJSD [2007] FMCA 604 is correct: the word "disregard" in the subsection admits of no ambiguity. For the reasons given, however, there was no breach by the Tribunal of that statutory injunction. If, contrary to my view and that of the other judges I have referred to, sur place "conduct" in s 91R(3) should be regarded as including ideas and beliefs motivating the conduct, the only infraction of the subsection by the Tribunal was in looking at such ideation with a view to considering whether it might assist the appellant in relation to his likely future conduct if returned to China, and coming to a negative conclusion. It is very plain that, had no such regard been had to that ideation, the appellant's application was in any case doomed to failure. Again therefore, any error was immaterial, did not taint the decision and would not result in the issue of writs.
Case: SZJSD v Minister for Immigration [2007] FMCA 604
Outcome: approved
The appellant submits that the Tribunal erred in so doing. Once the Tribunal held that the conduct in question was to be disregarded due to s 91R(3) , it had to disregard that conduct for all aspects of its decision. The appellant relies on two authorities to support his construction of s 91R(3) , both decisions of Driver FM: SZHAY v Minister for Immigration [2006] FMCA 261 and SZJSD v Minister for Immigration [2007] FMCA 604. 40 I agree with the respondent's analysis that the Tribunal rejected the appellant's sur place motivations and beliefs, but did not have relevant regard to his conduct, as an indicator of a likely "higher profile" if returned to China than he previously had there (on the Tribunal's findings). I accept, as the respondent seems to have done sub silentio , that Driver FM's point in SZHAY [2006] FMCA 261 and SZJSD [2007] FMCA 604 is correct: the word "disregard" in the subsection admits of no ambiguity. For the reasons given, however, there was no breach by the Tribunal of that statutory injunction. If, contrary to my view and that of the other judges I have referred to, sur place "conduct" in s 91R(3) should be regarded as including ideas and beliefs motivating the conduct, the only infraction of the subsection by the Tribunal was in looking at such ideation with a view to considering whether it might assist the appellant in relation to his likely future conduct if returned to China, and coming to a negative conclusion. It is very plain that, had no such regard been had to that ideation, the appellant's application was in any case doomed to failure. Again therefore, any error was immaterial, did not taint the decision and would not result in the issue of writs.
Case: Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548
Outcome: cited
The Tribunal member was clearly alive to the distinction between religious activity (or conduct) and the belief which allegedly motivated it. The Tribunal spoke, for example, of whether, "leaving aside his conduct", the appellant had "a genuine and sustained interest" in higher order religious practice. (That is so despite what may be the Tribunal's slightly confusing or ambiguous use of the term "role" as distinguished from conduct I think the Tribunal was using "role" to indicate the perception of him that others would have.) The distinction between motivation or belief on the one hand and "conduct" on the other has been noticed in this Court: see Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548 at [16] per Gray J and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [91] - [96] per Young J.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
A failure to comply with s 424A amounts to jurisdictional error: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 183 per McHugh J, at 203 per Kirby J and at 211 per Hayne J. 20 As set out in the amended notice of appeal, the appellant relied on two grounds. The first ground arose under s 424A and had two limbs (1) Ms Meehan's letter; and (2) the appellant's initial statement regarding his office in the YWA. The second ground related to the Tribunal's failure to make inquiries about Ms Meehan's qualifications. 21 The appellant submitted that the fact that Ms Meehan failed to specify her qualifications constituted a part of the reason for the Tribunal's decision for affirming the delegate's decision and, thus, s 424A(1) of the Act applied. This submission gives rise to the question, first, whether the Tribunal's knowledge of the fact that Ms Meehan's letter did not contain a statement of her qualifications amounted to "information" for the purposes of s 424A(1). If it did, there is a further question as to whether this was information that the Tribunal considered "would be the reason, or a part of the reason" for affirming the decision under review.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
This Court has discussed what is intended by the term "information" in s 424A on a number of occasions. As Finn and Stone JJ said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477: [T] here is now a considerable body of case law concerned with the compass of the term 'information' in its s 424A(1) setting. The following propositions emerge from it: (i ) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-218 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] . The Court substantially accepted this approach in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (" SZEEU "): compare SZEEU at 226-228 per Moore J, at 252 and 254 per Weinberg J and at 259-260 per Allsop J.
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: referred to
The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply.
Case: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271
Outcome: referred to
The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply.
Case: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435
Outcome: referred to
The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply. 46 The question whether an applicant gave an item of information for the purposes of his or her review application must be answered by reference to the particular facts of the case. As Rares J said in SZGGT at [36] and [50], these facts must be considered objectively. The nature of the information is also relevant to this inquiry: see NBKT at [59] per Young J. For example, if the Tribunal puts a specific piece of factual information to the applicant in the course of the hearing and the applicant affirms that it is true, then the conclusion may readily be reached that the applicant has given this information to the Tribunal for the purposes of the review.
Case: SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451
Outcome: referred to
The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply.
Case: VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302
Outcome: referred to
The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply.
Case: SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538
Outcome: referred to
The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply.
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
Outcome: referred to
In other cases, the Tribunal has asked the applicant about such information, which it has generally found in the Department's file in the Tribunal's possession. In cases of this kind, the Court has adopted no fixed view about the application of the exception. On some occasions, it has found that s 424A(3)(b) does not apply, because the applicant was not to be taken as having given the information to the Tribunal for the purposes of the review application: see, for example, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39] - [42] per Jacobson J. In SZBMI , which appeal is reported with SZEEU , the applicant confirmed with the Tribunal that an earlier statement as to flight information was true and correct. This led the respondent to argue that the appellant in that case had adopted the flight information and given it to the Tribunal for the purposes of its review. Moore J, at 225, specifically rejected this submission, commenting: I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate.
Case: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609
Outcome: referred to
As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J.
Case: SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
Outcome: referred to
As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J.
Case: Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.