mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: referred to
Three months after NAOA [2004] FCAFC 241 was decided, the High Court decided Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 where at 10-15 [28]-[41] McHugh, Gummow, Callinan and Heydon JJ analysed the course of a hearing before the tribunal based solely on the decision record. They noted ( NAFF 221 CLR at 10 [28] and see too at 5 [9]) that without access either to the tape recording or transcript of the hearing before the tribunal it was not easy for the Court to appreciate the detail of everything that happened at the hearing. I consider that the Full Court in NAOA [2004] FCAFC 241 at [21] simply made its comments based on the particular facts of that case. As is clear from NAFF [2004] HCA 62 ; 221 CLR 1 , the tribunal's decision record alone is evidence of what happened at the hearing.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 8
Outcome: cited
The function of a court is to discern whether the tribunal has arrived at its decision on the merits by a procedure authorised by, and in conformity with, the enactment which conferred the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95-96 [14] - [16] ; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [37] - [41] per myself.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: referred to
The Minister's argument conflated the weight which may be given to evidence capable of proving a fact with the ultimate fact sought to be proved by that evidence. As Dixon J pointed out in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 363, the nature of the issue necessarily affects the process by which the tribunal of fact can attain a reasonable satisfaction of the occurrence of an event. He said reasonable satisfaction was not a state of mind that was attained or established independently of the nature and consequence of the fact or facts to be proved: Briginshaw 60 CLR at 362. This reflects s 140 of the Evidence Act : see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] per Weinberg and Bennett JJ and myself. Thus, in Rejfek v McElroy (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said that no matter how grave the fact which was to be found in a civil case, the mind had only to be reasonably satisfied and had not, with respect to any matter in issue in such a proceeding, to attain that degree of certainty which is indispensable to the support of a conviction on a criminal charge.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 46
Outcome: cited
The Minister's argument conflated the weight which may be given to evidence capable of proving a fact with the ultimate fact sought to be proved by that evidence. As Dixon J pointed out in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 363, the nature of the issue necessarily affects the process by which the tribunal of fact can attain a reasonable satisfaction of the occurrence of an event. He said reasonable satisfaction was not a state of mind that was attained or established independently of the nature and consequence of the fact or facts to be proved: Briginshaw 60 CLR at 362. This reflects s 140 of the Evidence Act : see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] per Weinberg and Bennett JJ and myself. Thus, in Rejfek v McElroy (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said that no matter how grave the fact which was to be found in a civil case, the mind had only to be reasonably satisfied and had not, with respect to any matter in issue in such a proceeding, to attain that degree of certainty which is indispensable to the support of a conviction on a criminal charge.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
In a case like the present, it is important to bear in mind that the tribunal's reasons are those of the administrative decision-maker. Courts cannot be concerned with looseness in the language nor unhappy phrasing of such reasons, nor must they be analysed minutely and finely '... with an eye keenly attuned to the perception of error': see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, quoting from Collector of Customs v Pozzolanic [1993] FCA 322 ; (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ. Their Honours warned against turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. Nonetheless, as Brennan J observed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 662: 'The distinction between method and merits is sometimes elusive.'
Case: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285
Outcome: cited
This does not mean that the tribunal has to identify to the applicant for review the significance of the questions it puts or the ultimate issue to which the questions go, as Emmett, Weinberg and Lander JJ held in Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at 302 [87]-[89]. Nor does the tribunal need to give a running commentary on its thought processes. Nonetheless the tribunal must ensure that it identifies to the applicant for review the issues arising in relation to the review, in accordance with s 425(1) and gives him or her a real opportunity to give evidence and to present arguments on them. I am of opinion that the tribunal did not do so in respect of the issues under s 91R(3) and what it expected the appellant ought to have known based on her attendances at the Local Church in Australia. 62 I am grateful for the assistance I received from counsel for the parties and, in particular, for the willingness of counsel to act for the appellant pursuant to Order 80 of the Federal Court Rules . 63 The appeal should be allowed. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 16 June 2008 Counsel for the Appellant: DK Catterns QC, HPT Bevan Counsel for the Respondents: S Lloyd Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 23 October 2007 Date of Judgment: 16 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/911.html
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
In a case like the present, it is important to bear in mind that the tribunal's reasons are those of the administrative decision-maker. Courts cannot be concerned with looseness in the language nor unhappy phrasing of such reasons, nor must they be analysed minutely and finely '... with an eye keenly attuned to the perception of error': see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, quoting from Collector of Customs v Pozzolanic [1993] FCA 322 ; (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ. Their Honours warned against turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. Nonetheless, as Brennan J observed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 662: 'The distinction between method and merits is sometimes elusive.'
Case: NAOA v Minister for Immigration [2004] FCAFC 241
Outcome: considered
After I reserved judgment, the Minister referred to what Beaumont, Merkel and Hely JJ said in NAOA v Minister for Immigration [2004] FCAFC 241 at [21] . They observed that it had not been open for the trial judge, on the evidence of the tribunal's decision record alone, to have made a finding that a matter had not been raised with the applicant at the hearing before the tribunal. They noted there that there was no transcript or affidavit before the trial judge as to what had occurred at the hearing. 32 Three months after NAOA [2004] FCAFC 241 was decided, the High Court decided Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 where at 10-15 [28]-[41] McHugh, Gummow, Callinan and Heydon JJ analysed the course of a hearing before the tribunal based solely on the decision record. They noted ( NAFF 221 CLR at 10 [28] and see too at 5 [9]) that without access either to the tape recording or transcript of the hearing before the tribunal it was not easy for the Court to appreciate the detail of everything that happened at the hearing. I consider that the Full Court in NAOA [2004] FCAFC 241 at [21] simply made its comments based on the particular facts of that case. As is clear from NAFF [2004] HCA 62 ; 221 CLR 1 , the tribunal's decision record alone is evidence of what happened at the hearing.
Case: NBKT v Minister for Immigration [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: distinguished
It is implicit in the reasoning of the tribunal that such knowledge of Christianity and the Local Church, as the appellant had, was obtained in Australia to strengthen her claim to be a refugee: cf s 91R(3) of the Act. That flows from its rejections of her claim to have been a member of the Local Church in China and, based on s 91R(3), the genuineness of her attendances at the Sydney Church. Yet there is nothing in the tribunal's statement of decision and reasons which indicates that it put the appellant on notice that she had not had that knowledge before arriving here. Nor did it make such a finding expressly. There may be other limitations on the tribunal's use of s 91R(3) in relation to a person's religious belief as suggested by Young J, with whom Gyles and Stone JJ agreed in NBKT v Minister for Immigration [2006] FCAFC 195 ; (2006) 156 FCR 419 at 442-443 [91] - [97] , but these do not arise here. 51 The tribunal said that it had applied s 91R(3) of the Act to disregard the appellant's conduct in attending the Local Church here. Yet it accepted that the appellant had been able to provide details of Christian belief and of Local Church beliefs and practices. Those details were not criticised by the tribunal and appear to have been accurate, so far as they were sought. The appellant did not appear to be making a claim based on her conduct in Australia. Certainly, she did not do so in her application for a protection visa. Nor did the delegate consider such a claim. The tribunal did not recite such a claim, although it noted her evidence of her attendance at the Local Church in Blacktown.
Case: Rejfek v McElroy (1965) 112 CLR 517
Outcome: applied
The Minister's argument conflated the weight which may be given to evidence capable of proving a fact with the ultimate fact sought to be proved by that evidence. As Dixon J pointed out in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 363, the nature of the issue necessarily affects the process by which the tribunal of fact can attain a reasonable satisfaction of the occurrence of an event. He said reasonable satisfaction was not a state of mind that was attained or established independently of the nature and consequence of the fact or facts to be proved: Briginshaw 60 CLR at 362. This reflects s 140 of the Evidence Act : see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] per Weinberg and Bennett JJ and myself. Thus, in Rejfek v McElroy (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said that no matter how grave the fact which was to be found in a civil case, the mind had only to be reasonably satisfied and had not, with respect to any matter in issue in such a proceeding, to attain that degree of certainty which is indispensable to the support of a conviction on a criminal charge.
Case: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724
Outcome: cited
The function of a court is to discern whether the tribunal has arrived at its decision on the merits by a procedure authorised by, and in conformity with, the enactment which conferred the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95-96 [14] - [16] ; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [37] - [41] per myself.
Case: SZILQ v Minister for Immigration (2007) 163 FCR 304
Outcome: referred to
The appellant argued that the tribunal's reasons do not suggest that she had been invited to give evidence or present arguments as to whether she had engaged in attending the Local Church in Australia either for the purposes of bolstering her claim for a protection visa or as going to her credibility generally. She relied on what Buchanan J had held in SZILQ v Minister for Immigration (2007) 163 FCR 304 at 315-316 [32]-[33] 37 The Minister argued that the tribunal's recitation of what had occurred at the hearing in the course of questioning the appellant put her on notice that her account generally was implausible. He argued that the inference from this material was that she was aware that her membership of the Local Church here was in issue. The Minister also argued that SZILQ 163 FCR at 315 [31] supported his submission that the tribunal did not have an obligation to put to the appellant that it would make a finding against her under s 91R(3), because that section placed the onus on the appellant of satisfying the tribunal that conduct engaged in in Australia was not done for the purposes of supporting the claim to a protection visa. 38 As the Court pointed out in SZBEL 228 CLR at 160 [25], what is required by procedural fairness is a fair hearing, not a fair outcome. The trial judge said that the appellant had clearly been put on notice by the delegate's decision in the s 424A letter that the truth of her whole narrative was in issue. I do not agree that that is so or that it was sufficient. First, in SZILQ 163 FCR at 316 [33] Buchanan J observed, correctly, that it is an essential premise of s 91R(3) that an applicant for review have a proper opportunity to satisfy the tribunal (or the Minister or a delegate) that the conduct in Australia which is said to be relevant was not engaged in just for the purpose of strengthening his or her claim to be a refugee. 54 The tribunal was required, by s 430(1)(d) of the Act, to refer in its statement '... to the evidence or any other material on which the findings of fact were based'. The tribunal gave a number of reasons stating that it found shortcomings and implausibilities in the appellant's knowledge of some Local Church doctrines. But, the delegate had not based his or her decision on this aspect or on the suggested Australian acquisition of knowledge by the appellant: cf SZBEL 228 CLR at 165 [45]. I agree with Buchanan J who observed in SZILQ 163 FCR at 316 [33] that it is an essential premise of s 91R(3) that the applicant for review have a proper opportunity to satisfy the tribunal (or decision-maker) of the matters with which that section deals.
Case: SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870
Outcome: cited
But moreover, it found, as a fact that '... it does not accept that she is currently a genuine practitioner' (my emphasis). There is nothing in her claim for a protection visa, the delegate's decision, or in the tribunal's statement of decision and reasons which put the appellant on notice before the tribunal's decision was made that the appellant had engaged in conduct here to strengthen her claim and that such conduct, went to her credibility. Nor could the s 424A letter that was sent after the hearing raise any new issue so as to satisfy the requirement in s 425(1) that the tribunal invite the applicant for review to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 at [59] per Besanko J.
Case: SZKTI v Minister [2008] FCAFC 83
Outcome: cited
As noted above, in its statement of decision and reasons the tribunal set out a summary of the evidence given by the appellant at the hearing. At the very end of that account the tribunal recorded simply that she had told it that she had been attending a Local Church at Blacktown (a suburb of Sydney) and that 'Tony' was the leader. Next, the tribunal recorded that after the hearing the appellant provided it with a letter from the Local Church in Sydney which confirmed her attendance there for the previous six months before she had moved to Brisbane one month earlier. It said that this information was confirmed when the tribunal contracted the Local Church (cp SZKTI v Minister [2008] FCAFC 83). 40 In the section of its decision headed "Findings and Reasons" the tribunal then made its adverse finding under s 91R(3). It did so on the express basis that it did not find the appellant to be credible. However, on its own account of its hearing and procedures, it never raised with her anything to suggest that the genuineness of her conduct here was an issue arising in relation to the delegate's decision (see: s 425(1)). Nor on the face of the delegate's decision could such an issue have arisen, since the delegate did not refer to any conduct of the appellant in Australia. 41 The issues concerning the appellant's conduct in Australia and her knowledge of the Local Church were not matters referred to by the delegate; rather they were new issues raised by the tribunal. And, the tribunal's findings about the appellant's conduct in Australia were integral to its findings that, at the time of its decision, first, she was not a genuine practitioner and secondly, that there was no real chance she would be persecuted for a convention reason if returned to China.
Case: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24
Outcome: followed
other Full Court judgment to which reference must be made is NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24. This was a judgment given on 25 February 2004 which, when amended by a corrigendum issued on 12 May 2004, contains the following passage: "In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53 ; [2002] FCA 232 at [18] [21], citing CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, ... , an opposite result would have been reached by the primary judge')." Although this passage contains an echo of the common law criteria referred to in Wollongong Corporation , and held to be inapplicable under a statutory provision like s 27 in CDJ , the Full Court's reference to CDJ does, on my reading of it, make it tolerably clear that it considered that CDJ ought to be applied in the exercise of the discretion under s 27. Particularly, the Full Court statement that, in relation to the second condition, it was not enough that the new evidence was relevant and otherwise admissible, and may have affected the result, is in broad conformity with the fourth consideration adumbrated in CDJ to which I have referred in par [17] above.
Case: Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining &amp; Energy Union [2000] HCA 34 ; (2000) 203 CLR 346
Outcome: cited
Counsel for the Minister submitted that, first, even if s 164(1) of the IR Act is invalid by reason of s 16(1) of the WPR Act, that did not render para 146(1)(d) of the IR Act invalid so as to prevent the continuation of the Inquiry. Second, he submitted that the use of the Commission's powers to summons witnesses would not cause obligations to be binding upon Tristar or its employees, respectively qua employer and employee as defined in s 16(1) of the WPR Act. And third, he submitted that, moreover, the obligations that may be imposed under s 164(1) of the IR Act cannot be said to prescribe the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations, referring me to what had been said by Gaudron J in the High Court in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining &amp; Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at 375 [84] , [85].