mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZICU v Minister for Immigration &amp; Citizenship [2008] FCAFC 1
Outcome: followed
A further aspect of procedural fairness potentially arises by reason of an alleged failure to comply with s 424A(1) of the Migration Act 1958 (Cth). No Ground of Appeal seems to raise any such alleged non-compliance. But that was a ground raised before the Federal Magistrate and rejected. Although not raised in the Notice of Appeal , the contention emerged in the written Outline of Submissions as filed in this Court by the Appellant. Those submissions contended that there had been a breach of s 424A(1) by the non-provision to the now Appellant of " the country information it had about Kerala and India ". As explained by the Federal Magistrate, s 424A(3) provides that such information does not fall within s 424A(1). That " information ", as is apparent from the reasons of the Tribunal, was not " about " the now Appellant: SZICU v Minister for Immigration &amp; Citizenship [2008] FCAFC 1 at [23] [26] per Tamberlin, Finn and Besanko JJ; Minister for Immigration &amp; Citizenship v SZHXF [2008] FCAFC 36 at [18] [22] per Tamberlin, Gyles and Stone JJ.
Case: SZIED v Minister for Immigration &amp; Citizenship [2007] FCA 1347
Outcome: followed
The test as to whether it is " reasonable " for an applicant to relocate requires that " the evaluation be proper, realistic and fair and all the circumstances be taken into account ": SZIED v Minister for Immigration &amp; Citizenship [2007] FCA 1347 at [52] .
Case: SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747
Outcome: cited
In the present proceedings, a number of the Grounds of Appeal are in substantially the same terms as were before Justice Collier in SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747. Those grounds in the present appeal provided (without alteration): 3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437. 5. The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. ... 11. The Tribunal applied the wrong test: Particulars: a) The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was , in fact , placing high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt. b) The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amount to persecution. The grounds as they were expressed in the proceedings before Collier J differed to the extent that those grounds did not refer to the Magistrate as being " learned " and did not refer to the decision in Randhawa as being a decision of the Full Court or the citation to that decision. There is not much other difference between these grounds in the present proceedings and those before Collier J.
Case: SZKDY v Minister for Immigration &amp; Citizenship [2007] FCA 1667
Outcome: followed
It is considered that there is no basis in the present proceedings to reach any conclusion other than that the evaluation of the now Appellant's claim by the Tribunal was " proper, realistic and fair ". The alleged error on the part of the Tribunal in making the findings it made was not further identified other than a submission made orally by the Appellant yesterday that he could not relocate within India because of language limitations. But that was a matter addressed by the Tribunal and resolved against the Appellant. Any further complaint as to the decision in fact reached by the Tribunal, it is considered, is a complaint as to the merits of the decision reached. Compare: SZKDY v Minister for Immigration &amp; Citizenship [2007] FCA 1667 at [8] per Gyles J.
Case: SZKPH v Minister for Immigration &amp; Citizenship [2007] FMCA 1962
Outcome: cited
The Federal Magistrates Court has, in turn, dismissed an application seeking review of the Tribunal's decision: SZKPH v Minister for Immigration &amp; Citizenship [2007] FMCA 1962. The Appellant now appeals to this Court. He appeared before the Court yesterday unrepresented, albeit with the assistance of an interpreter. Previously filed with the Court were written submissions by both the Appellant and the Respondent Minister. 4 The Notice of Appeal sets forth ten purported Grounds of Appeal , although a number of those grounds raise substantially the same issues. None of the grounds has been made out and the appeal is dismissed. 5 The first two grounds assert that the Federal Magistrate failed to find that the Tribunal had committed error of law, jurisdictional error, factual error, and denied the now Appellant procedural fairness.
Case: SZJMU v Minister for Immigration &amp; Citizenship [2007] FCA 1344
Outcome: followed
The material before the delegate is set forth in his decision dated 11 December 2006. The material that was before the Tribunal is also set forth in its reasons for decision. There was no identification by the Appellant of those documents which he contended should have been before the Tribunal but were not. Generalised assertions as to a denial of procedural fairness and a citation of the decision in Muin does nothing to assist this Court in the resolution of a challenge to a decision of the Tribunal: SZJMU v Minister for Immigration &amp; Citizenship [2007] FCA 1344 at [16] per Mansfield J.
Case: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158
Outcome: followed
It should further be noted that this ground was not a ground raised for resolution before the Federal Magistrate. No satisfactory explanation has been provided for not previously raising it. Although this Court has a discretion to permit a new ground to be raised on appeal, there should generally be an adequate explanation for not raising the ground before the Federal Magistrate ( SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502 at [38] [41]) and leave should only be granted if it is expedient in the interests of justice to do so ( VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 at [46] [48]). In the present proceedings, the only explanation provided yesterday was that this particular ground was inserted consequent upon a meeting between the Appellant and a migration agent.
Case: SZNAL v Minister for Immigration and Citizenship [2009] FMCA 673
Outcome: affirmed
appellant is a citizen of China who arrived in Australia on 3 April 2008. She lodged an application for protection visa, which was refused by a delegate of the Minister. On an application for review of that decision, the Refugee Review Tribunal affirmed the decision of the delegate. The Tribunal was not satisfied the applicant's conduct in Australia satisfied s 91R(3)(b) of the Migration Act 1958 (Cth) ('the Act'). On an application for review to the Federal Magistrates Court, Raphael FM dismissed the application ( SZNAL v Minister for Immigration and Citizenship [2009] FMCA 673). In her notice of appeal the appellant raises a single ground, which, as particularised, may raise certain sub-grounds. The ground in the notice of appeal is that the Federal Magistrate failed to consider the applicant's claim that the RRT decision was affected by jurisdictional error in that it incorrectly applied s 91R(3) of the Act. The particulars are: "According to s 91R(3) , the Tribunal must disregard the applicant's conduct in Australia." ('Ground 1') "The Tribunal failed to invite the applicant to establish the purpose for her Falun Gong practice in Australia." ('Ground 2') "The applicant claims that she did not practise Falun Gong for the purpose of her current visa applicant." ('Ground 3') Before the Tribunal the appellant claimed that she became a practitioner of Falun Gong in 1998 but that in 1999 she ceased practising Falun Gong when Falun Gong was banned. The appellant did not claim to have left China because she was a Falun Gong practitioner who was unable to practise Falun Gong. Rather, her claim seems to have been that she had a well-founded fear of persecution due to her imputed political opinion as a person who opposed the government's treatment of Falun Gong practitioners.
Case: Aksu v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 514 ; (2001) 65 ALD 667
Outcome: distinguished
Toro Martinez argued that Direction No 21 had not overcome the criticism of its predecessor, Direction No 17, made by Dowsett J in Aksu v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 514 ; (2001) 65 ALD 667 at 674-675 [21] - [24] . There, his Honour said that while the direction invited a balancing exercise which would normally involve an assessment of all the relevant factors having regard to their significance in the case in question, in fact that direction fettered that process. This was because it prescribed that some factors could never have more weight than others. His Honour pointed out that direction No 17 set out primary considerations which amounted to direct outcomes resultant from a person's bad character so that its effect was that ( Aksu 65 ALD at 674 [23]): "... once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of a visa. That is inconsistent with the unfettered discretion conferred by s 501."
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: applied
J referred to the principle, also relied on by Mr Toro Martinez here, that in the ordinary case, where no problem of confidentiality arises, an opportunity should be given to a person affected to deal with adverse information that is credible, relevant and significant to a decision to be made. The decision-maker must determine what such information is before arriving at the final decision and give an opportunity to the person affected to deal with it: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 [15] and 96 [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Information that could not be dismissed from further consideration by the decision-maker before making the decision was "credible, relevant and significant".
Case: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630
Outcome: discussed
tribunal is not required to address every piece of evidence before it, provided that it considers the intergers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 at 641 [47] "the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons." However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued: "It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked."
Case: Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557
Outcome: followed
court will assume that the legislature intended to act fairly when it construes retrospective legislation to ascertain the extent that the law was intended to operate retrospectively: Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 at 571 [54] per Spigelman CJ. And, there is a general rule that where the legislature alters the rights of persons retrospectively unless the Act clearly so operates, the Court will not construe it to affect rights: cf: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466 at 486C-D per Mason JA: see too NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133 at 161-162 [130]-[132] per Spigelman CJ, with whom Hidden and Latham JJ agreed.
Case: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466
Outcome: cited
court will assume that the legislature intended to act fairly when it construes retrospective legislation to ascertain the extent that the law was intended to operate retrospectively: Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 at 571 [54] per Spigelman CJ. And, there is a general rule that where the legislature alters the rights of persons retrospectively unless the Act clearly so operates, the Court will not construe it to affect rights: cf: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466 at 486C-D per Mason JA: see too NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133 at 161-162 [130]-[132] per Spigelman CJ, with whom Hidden and Latham JJ agreed.
Case: Becker v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58
Outcome: cited
reviewing an administrative decision the tribunal has to give the decision it considers to be the correct or preferable decision. That function must be performed independently of any instruction, advice or wish of the executive government, including in cases where government policy is a relevant factor for consideration and the powers of the tribunal are limited to affirming or recommending the reconsideration of the decisions of a Minister: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 17-18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, approving Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58 at 163 per Brennan J as President of the Tribunal. The decision of the tribunal in the particular circumstances of each case must be arrived at according to its opinion as to the merits of that case.
Case: Coco v The Queen (1994) 179 CLR 427
Outcome: applied
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 ; (2007) 163 FCR 414 at 442-444 [105] - [113] , Black CJ, French and Weinberg JJ discussed the construction of s 501 and applied the principles identified in the following passage in Coco v The Queen (1994) 179 CLR 427 at 437. There Mason CJ, Brennan, Gaudron and McHugh JJ said: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights (see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at p 12, per Mason CJ)." They said that application of this principle by the Courts would be likely to enhance the Parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights: Coco 179 CLR at 437-438. In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 370-372 Burchett and Lee JJ discussed (in passages approved in Haneef 163 FCR at 443 [108] and [111]) a statutory predecessor of s 501 that provided that an illegal immigrant was liable to deportation if that person had been convicted of offences and been sentenced to imprisonment for at least one year. They said that the section deprived the persons "caught by it of one of their most precious rights, their right of community". Burchett and Lee JJ said that the making of a deportation order was a plain infringement of liberty and was more so if the law authorising it was retroactive. They said ( Sciascia 31 FCR at 372): "Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation."
Case: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited [1979] FCA 21 ; (1979) 41 FLR 338
Outcome: cited
long line of authority in this Court has held that the tribunal has jurisdiction to review a purported decision, even where it is clear that the decision of the original decision-maker was affected by a jurisdictional error: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited [1979] FCA 21 ; (1979) 41 FLR 338 at 342 344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration [2004] FCAFC 248 ; (2004) 139 FCR 344 at 352-354 [28] - [32] per Finn, Mansfield and Gyles JJ. The tribunal has power to cure a defect in the delegate's decision once the tribunal's jurisdiction has been invoked by an application for review: Zubair 139 FCR at 354. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 116 per Mason J.
Case: Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585
Outcome: cited
Minister, on the other hand, relied upon the words in item 7(1) "... is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa ... were a visa that had been granted". He contended that this retrospectively deemed the delegate's decision always to have been valid and that, as a result, the tribunal's decision affirming that decision was unimpeachable. The Minister argued that to affirm the decision under review had the effect of leaving the delegate's decision as the only operative decision. He contended that an affirmation by the tribunal of a decision of a delegate has the effect that the original decision of the delegate continues to operate and the later decision of the tribunal does not operate in substitution: Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 ; (2008) 167 FCR 578 at 583 [23] per Tamberlin J, with whom Besanko J agreed at 586 [42]; see also Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587F-588B per North J. However, as French, O'Loughlin and Whitlam JJ pointed out in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 ; (2002) 118 FCR 326 at 346 [68] the source of the tribunal's power to give the correct or preferable decision on a review is s 43 of the Administrative Appeals Tribunal Act . They said: "It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision ... Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa."
Case: Enfield City v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135
Outcome: applied
finding is the province of the tribunal. Ordinarily, an error of fact by the tribunal will not constitute a jurisdictional error, let alone an error of law. There is no error of law in simply making a wrong finding of fact: Enfield City v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Mr Toro Martinez accepted that position. However, he argued that the tribunal's conclusion that he would face no serious danger of personal harm by returning to Columbia was not a finding that the tribunal could make on any fair reading of the totality of the material on which it was based. He relied on the principle that if a decision-maker made a finding that was a critical step in arriving at its ultimate conclusion, but had no evidence to support it, the finding may well constitute a jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 at 407 [19] per Mansfield, Selway and Bennett JJ; SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] per Greenwood J; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 at 12 [42] per Flick J.
Case: Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49
Outcome: cited
provisions that do create fictions must be carefully construed. The purpose for which the legislature introduced the fiction must be identified by the Court: Muller v Dalgety &amp; Co Ltd [1909] HCA 67 ; (1909) 9 CLR 693 at 696 per Griffith CJ; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65 per Windeyer J; see too Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4 ; (1974) 133 CLR 641 at 655 per Gibbs J. The curative effect of legislative provisions using the statutory fictions created by phrases such as those used in item 7 will usually operate only on the source of invalidity identified in the enactment: cf: Yougarla v Western Australia [2001] HCA 47 ; (2001) 207 CLR 344 at 368 [60] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.