mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Outcome: cited
number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). I note the comments of the Full Court in Ergon where their Honours accepted that a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear. However in the case before me, while I understand what the Commissioner is seeking to achieve by par 2(g), in my view it does not raise a particular, pure question of law as is explained by the Full Court in Birdseye . In Ergon , while the question was not framed as such as a 'question', nevertheless a particular issue of law specific to that case was clearly posed.
Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: cited
Looney for the applicant drew my attention to comments of Fisher J in Sullivan v Department of Transport (1978) 20 ALR 323 at 350. There his Honour said that, in allowing an appeal on the basis of s 44 AAT Act , the court must be completely satisfied that there was an error of law on the part of the Tribunal such as a misapprehension or failure to take into account any material fact. Mr Looney submitted that this case was authority for the principle that it was acceptable for the purposes of s 44 to plead an error of law such as that the Tribunal did not take into account relevant considerations. However, I do not read comments of Fisher J in that way. In that case, his Honour was describing the matters of which the Court must be satisfied in allowing an appeal under s 44. His Honour was not describing a question of law which would found an appeal under s 44. The matters about which the Court must be satisfied after considering the questions of law submitted by an applicant in its appeal from a decision of the Tribunal are quite different from the questions of law which must form the basis of the appeal under s 44. In any event, in Sullivan it does not appear on the face of the decision that the question(s) of law which founded the appeal were so broadly drafted as submitted by Mr Looney.
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Outcome: cited
number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]).
Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: cited
The Minister submits that the Act authorises the Tribunal to continue to review the decision to its conclusion even though the particular Tribunal member has determined the matter previously and relies upon Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. The Minister also relies upon Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [26] - [27] and submits that the duty of the Tribunal to review the delegate's decision under s 414 (1) of the Act continues until one of the outcomes described in s 415(2) of the Act is reached. The Minister submits that because the Tribunal's first decision was attended by jurisdictional error by reason of a failure to comply with s 424A of the Act, it is not a valid decision under the Act and the Tribunal's duty of review accordingly continues until it validly reaches an outcome envisaged by s 415(2) of the Act.
Case: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Outcome: referred to
In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.
Case: Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281
Outcome: distinguished
The Minister relied upon Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 to support the submission that the review was properly conducted. In that decision Finkelstein J found no basis to support the claim of apprehended bias. Further, the decision did not concern two decisions by the same Tribunal. Accordingly the facts are distinguishable and the Minister's reliance on this decision is misconceived. 32 Because of the adverse findings by the Tribunal member of the appellant's credit and the falsity of his documents in the first decision, the Court is satisfied that a fair minded and informed person might reasonably apprehend that the Tribunal member would not bring an impartial mind to bear in making to second decision.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: referred to
Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886.
Case: Ebner v Official Trustee in Bankrupt cy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: referred to
The Tribunal member's attempt to do justice does not overcome the manifest defect in the conduct of the hearing since the thought processes of the decision maker are irrelevant to the question whether bias may be apprehended through an objective assessment of the decision-maker's conduct: see Ebner v Official Trustee in Bankrupt cy [2000] HCA 63 ; (2000) 205 CLR 337 at 345 per Gleeson, Gummow and Hayne JJ; NADH 214 ALR 264.
Case: Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163
Outcome: referred to
In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.
Case: Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543
Outcome: referred to
Thirdly, the particular circumstances of this case are such that refusal to grant leave may lead to serious consequences for an appellant seeking asylum as considered in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at 548 and in SZEPN [2006] FCA 886 [16]. 22 The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.
Case: Hosler v Maughan (1989) 40 A Crim R 281
Outcome: referred to
In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.
Case: J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: followed
In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.'
Case: Kanda v Government of Malaya [1962] AC 322
Outcome: followed
There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. However it is critical that the Tribunal does not close its mind to any additional material that might possibly prove probative: see SZGMF [2006] FCAFC 138 at [21] . If the decision maker's mind is closed, ' no hearing really takes place ': see Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning MR. Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings (see NADH 214 ALR at 269 per Allsop J), but it is sufficient if the parties or the public 'might entertain a reasonable apprehension': see Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]. The accepted standard of proof for such finding is one of ' real possibility' : see Livesey 151 CLR at 294.
Case: Khadem v Barbour (1995) 38 ALD 299
Outcome: referred to
In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: considered
The Minister submits that the Act authorises the Tribunal to continue to review the decision to its conclusion even though the particular Tribunal member has determined the matter previously and relies upon Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. The Minister also relies upon Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [26] - [27] and submits that the duty of the Tribunal to review the delegate's decision under s 414 (1) of the Act continues until one of the outcomes described in s 415(2) of the Act is reached. The Minister submits that because the Tribunal's first decision was attended by jurisdictional error by reason of a failure to comply with s 424A of the Act, it is not a valid decision under the Act and the Tribunal's duty of review accordingly continues until it validly reaches an outcome envisaged by s 415(2) of the Act. 37 The Tribunal had power to reconsider its decision in the circumstances where it recognised its failure to execute its obligations under the Act: see Bhardwaj [2002] HCA 11 ; 209 CLR 597. Pursuant to s 414(1) of the Act the Tribunal is required to continue its review of the delegate's decision until one of the outcomes in s 415(2) has been reached. However, the statutory obligation to do so does not authorise the Tribunal to depart from its duty to provide a hearing which complies with the requirements of s 420(1). 38 The Court is satisfied that an objective observer might reasonably apprehend bias on the part of the Tribunal member from the conduct of the Tribunal in its reconsideration of the appellant's application after comprehensively rejecting the appellant's claims, evidence and credit in the first decision. The second decision was accordingly attended by jurisdictional error and was not ' fair' as required by s 420(1) of the Act. The Court finds that the Tribunal should have been constituted differently for determination of the second review. 39 For the above reasons the Court grants leave to the appellant to rely upon the Amended Notice of Appeal and allows the appeal, noting that there was no error by Scarlett FM in respect of the matters raised before him. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 10 July 2007 Counsel for the Appellant: M.D. Seymour Counsel for the Respondent: V. McWilliams Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 May 2007 Date of Judgment: 10 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/765.html
Case: Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421
Outcome: referred to
There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. However it is critical that the Tribunal does not close its mind to any additional material that might possibly prove probative: see SZGMF [2006] FCAFC 138 at [21] . If the decision maker's mind is closed, ' no hearing really takes place ': see Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning MR. Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings (see NADH 214 ALR at 269 per Allsop J), but it is sufficient if the parties or the public 'might entertain a reasonable apprehension': see Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]. The accepted standard of proof for such finding is one of ' real possibility' : see Livesey 151 CLR at 294.
Case: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
Outcome: referred to
There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. However it is critical that the Tribunal does not close its mind to any additional material that might possibly prove probative: see SZGMF [2006] FCAFC 138 at [21] . If the decision maker's mind is closed, ' no hearing really takes place ': see Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning MR. Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings (see NADH 214 ALR at 269 per Allsop J), but it is sufficient if the parties or the public 'might entertain a reasonable apprehension': see Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]. The accepted standard of proof for such finding is one of ' real possibility' : see Livesey 151 CLR at 294.