mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: VHAP of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 80 ALD 559
Outcome: followed
Although not specifically addressed in the appellant's submissions for completeness I should express my view that, in relation to these photographs, the Tribunal did not come under an obligation under s 424A(1) because of the exemption in s 424A(3)(a). It is clear that the information in the photographs was 'not specifically about the applicant or another person' and, as Merkel and Hely JJ commented in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [138] : '... the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but ... is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it.' In this regard see also VHAP of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 80 ALD 559 at [14].
Case: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212
Outcome: followed
The meaning of 'information' in the context of ss 424 and 424A of the Migration Act was considered by the Full Federal Court in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212. Win concerned the Tribunal's treatment of an anonymous letter containing allegations adverse to the appellant's credibility that was sent to the Department of Immigration and Multicultural Affairs. The Court found that the meaning of 'information' in s 424A was the same as that in s 424. The Court referred (at 217) to the Macquarie Dictionary's definition of the word 'information', which included 'Knowledge communicated or received concerning some fact or circumstance' (see also Tin v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1109 at [53] ). The definition in the Oxford English Dictionary , also referred to by the Full Court, included 'Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told.' The Full Court considered that 'information', for the purpose of ss 424 and 424A encompassed 'assertions made by a person ... that particular aspects of an applicant's account of events are untrue'. It is clear that the Full Court's focus in Win was not upon the anonymous letter itself, but upon the assertions contained within the letter. This approach was followed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 where (at 477) Finn and Stone JJ also focused on what does not constitute information: 'The word does not encompass the tribunal's subjective appraisals, thought processes or determinations ... 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 ...'
Case: Culley v Australian Securities and Investments Commission [2009] FCA 1208
Outcome: referred to
Culley v Australian Securities and Investments Commission [2009] FCA 1208 , Mr Brian Culley brought an appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The Administrative Appeals Tribunal ("the Tribunal") had affirmed a decision of a delegate of the respondent ("ASIC") which prohibited Mr Culley from managing a corporation for a period of two years. The delegate's decision was made under s 206F of the Corporations Act 2001 (Cth) ("the Act"). Mr Culley appealed to this Court on six questions of law. The first four questions arose from matters dealt with in the Tribunal's reasons. Each was resolved adversely to Mr Culley. The fifth and sixth questions asked: "(5) Whether the statutory power of disqualification contained in s 206F of the Corporations Act is subject to an implied requirement that it be exercised within a reasonable time; and (6) Whether the respondent failed to exercise its statutory power of disqualification contained in s 206F of the Corporations Act within a reasonable time".
Case: Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1990) 90 FCR 538
Outcome: cited
the other hand, cases such as Raptis and Cooper support the proposition that a "failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal": Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528 (per Lee J). See also Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at 556-8 where the Full Court concluded (at 558) that: "It follows from what we have said that we do not see the problem facing the taxpayer as simply being that he has sought in this Court to raise fresh arguments not put to the AAT. It is not simply a matter of whether the AAT would have found in favour of the taxpayer had the arguments been put and whether raising those arguments before the Court creates "prejudice" to the Commissioner. The issue in the present case is, in the context of the relevant provisions of the [ Taxation Administration Act 1953 (Cth)], whether the AAT erred in law by not addressing the arguments now sought to be raised ... In our view, it did not". See also Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 255-256.
Case: Federal Commissioner of Taxation v Raptis [1989] FCA 381 ; (1989) 20 ATR 1262
Outcome: cited
Federal Commissioner of Taxation v Raptis [1989] FCA 381 ; (1989) 20 ATR 1262 at 1267 Gummow J said that: "[t]here must be some difficulty ... in finding an "error of law" in the failure in the tribunal to make a finding first urged in this court". His Honour's observation was referred to with approval by the Full Court in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18. On the other hand, cases such as Raptis and Cooper support the proposition that a "failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal": Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528 (per Lee J). See also Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at 556-8 where the Full Court concluded (at 558) that: "It follows from what we have said that we do not see the problem facing the taxpayer as simply being that he has sought in this Court to raise fresh arguments not put to the AAT. It is not simply a matter of whether the AAT would have found in favour of the taxpayer had the arguments been put and whether raising those arguments before the Court creates "prejudice" to the Commissioner. The issue in the present case is, in the context of the relevant provisions of the [ Taxation Administration Act 1953 (Cth)], whether the AAT erred in law by not addressing the arguments now sought to be raised ... In our view, it did not". See also Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 255-256.
Case: Ferriday v Repatriation Commission (1996) 69 FCR 521
Outcome: cited
the other hand, cases such as Raptis and Cooper support the proposition that a "failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal": Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528 (per Lee J). See also Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at 556-8 where the Full Court concluded (at 558) that: "It follows from what we have said that we do not see the problem facing the taxpayer as simply being that he has sought in this Court to raise fresh arguments not put to the AAT. It is not simply a matter of whether the AAT would have found in favour of the taxpayer had the arguments been put and whether raising those arguments before the Court creates "prejudice" to the Commissioner. The issue in the present case is, in the context of the relevant provisions of the [ Taxation Administration Act 1953 (Cth)], whether the AAT erred in law by not addressing the arguments now sought to be raised ... In our view, it did not". See also Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 255-256.
Case: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241
Outcome: referred to
the other hand, cases such as Raptis and Cooper support the proposition that a "failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal": Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528 (per Lee J). See also Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at 556-8 where the Full Court concluded (at 558) that: "It follows from what we have said that we do not see the problem facing the taxpayer as simply being that he has sought in this Court to raise fresh arguments not put to the AAT. It is not simply a matter of whether the AAT would have found in favour of the taxpayer had the arguments been put and whether raising those arguments before the Court creates "prejudice" to the Commissioner. The issue in the present case is, in the context of the relevant provisions of the [ Taxation Administration Act 1953 (Cth)], whether the AAT erred in law by not addressing the arguments now sought to be raised ... In our view, it did not". See also Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 255-256.
Case: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334
Outcome: cited
distinction has been drawn, in the authorities, between findings which the Tribunal is bound to make for the purposes of a particular case and those which it is not required to make. In the former case a question of law may be found to arise notwithstanding the failure of the parties to raise the issue before the Tribunal and the failure of the Tribunal to deal with it. Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 was such a case. There Bowen CJ said (at 343) that: "In my opinion a party is not necessarily precluded by the conduct of his case before the Tribunal from arguing on "appeal" matters conceded below. If he is successful then the decision of the Tribunal may be overturned found in some way to be wrong in law, even though that error may have been substantially contributed to by the conduct of the case by the party in question. In other words, the conduct of the party's case before the Tribunal goes to this Court's discretion to what course it will take given that there has been an error rather than to the question as to whether the Tribunal really made an error. The case before this Court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status. Whether or not that error should lead to the decision of the Tribunal being set aside and the matter remitted to it depends in my view upon principles similar to those expressed by Dixon J in Burston's case and by the same judge in Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 , at p 640 "to fulfil an imperative demand of justice...". In Kuswardana the Tribunal had to make a determination as to whether or not the applicant before it was an 'immigrant' because the application of the statutory provisions which the Tribunal was applying depended on an answer to that question.
Case: Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99 ; (1982) 42 ALR 209
Outcome: cited
powers must be read in context. They are not as expansive as might at first appear. In Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99 ; (1982) 63 FLR 441 at 454 Sheppard J said that: "It is in my opinion not correct to say that this court is by these provisions given wide powers to make such order as it thinks fit. Implicit in its power are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before the court and is the only subject matter of any order made consequent on the appeal. The order which this court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this court under this section. A power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal. Section 44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s. 44(4) when it limits its statement of the express power of the court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings...". It is not disputed that the "reasonable time" point could have been taken before the Tribunal. Had it been, the Tribunal would have been in a position to find the facts which are set out in my earlier judgment at [43]-[52] and determined whether, as a matter of law, ASIC had failed to comply with the implied obligation contained in s 206F of the Act and what, if any, consequences should follow. The Tribunal did not consider the point and make any findings because Mr Culley did not raise it.
Case: Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Outcome: referred to
Federal Commissioner of Taxation v Raptis [1989] FCA 381 ; (1989) 20 ATR 1262 at 1267 Gummow J said that: "[t]here must be some difficulty ... in finding an "error of law" in the failure in the tribunal to make a finding first urged in this court". His Honour's observation was referred to with approval by the Full Court in Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18. On the other hand, cases such as Raptis and Cooper support the proposition that a "failure of a Tribunal to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to "appeal" on that point, will mean that no question of law can be relied upon to ground the appeal": Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528 (per Lee J). See also Federal Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at 556-8 where the Full Court concluded (at 558) that: "It follows from what we have said that we do not see the problem facing the taxpayer as simply being that he has sought in this Court to raise fresh arguments not put to the AAT. It is not simply a matter of whether the AAT would have found in favour of the taxpayer had the arguments been put and whether raising those arguments before the Court creates "prejudice" to the Commissioner. The issue in the present case is, in the context of the relevant provisions of the [ Taxation Administration Act 1953 (Cth)], whether the AAT erred in law by not addressing the arguments now sought to be raised ... In our view, it did not". See also Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 255-256.
Case: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1988) 86 FCR 547
Outcome: followed
The " observations " and conclusions reached by the Tribunal, however, were matters for it. The conclusion relied upon by the Appellants was a conclusion open to the Tribunal upon the facts before it and, as such, does not disclose any jurisdictional error. The task of making findings of fact is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1988) 86 FCR 547 at 552, 559. " It is not for this Court to reconsider the tribunal's factual findings ": NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81] , [2006] FCAFC 195 ; 93 ALD 333 at 352 per Young J (Gyles and Stone JJ agreeing). Wherever the boundaries of jurisdictional error may be drawn, they do not comprehend errors of fact as to the merits of the case put to the Tribunal nor the weight to be attributed to evidence going to the issues raised before the Tribunal: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
Again, this Ground impermissibly seeks to project this Court -- and the Federal Magistrates Court -- into a review of the findings and conclusions made by the Tribunal. It is no part of the function of either court to consider the merits of a decision as made by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281 2. To the extent that this Ground can be understood, it also seems to suffer from a more fundamental problem. In reaching the conclusion that it did, the Tribunal accepted the Appellant husband's own assessment as to the problems to be confronted in the future. How an acceptance of such evidence can constitute " jurisdictional error " also remained unexplained. 14 The appeal must be dismissed with costs. Pursuant to O 62 r 4(2)(c) of the Federal Court Rules costs are sought in a gross sum of $2,600. It is appropriate to make an order for the payment of such costs. 15 The orders of the Court are: 1. The appeal be dismissed. 2. The Appellants to pay the costs of the First Respondent fixed in the sum of $2,600. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 21 August 2008 The First Appellant: The First Appellant appeared in person The Second Appellant: The Second Appellant did not appear Counsel for the First Respondent: L Clegg Solicitor for the First Respondent: Clayton Utz Date of Hearing: 21 August 2008 Date of Judgment: 21 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1306.html
Case: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10
Outcome: followed
The " observations " and conclusions reached by the Tribunal, however, were matters for it. The conclusion relied upon by the Appellants was a conclusion open to the Tribunal upon the facts before it and, as such, does not disclose any jurisdictional error. The task of making findings of fact is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1988) 86 FCR 547 at 552, 559. " It is not for this Court to reconsider the tribunal's factual findings ": NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81] , [2006] FCAFC 195 ; 93 ALD 333 at 352 per Young J (Gyles and Stone JJ agreeing). Wherever the boundaries of jurisdictional error may be drawn, they do not comprehend errors of fact as to the merits of the case put to the Tribunal nor the weight to be attributed to evidence going to the issues raised before the Tribunal: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 , 93 ALD 333
Outcome: followed
The " observations " and conclusions reached by the Tribunal, however, were matters for it. The conclusion relied upon by the Appellants was a conclusion open to the Tribunal upon the facts before it and, as such, does not disclose any jurisdictional error. The task of making findings of fact is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1988) 86 FCR 547 at 552, 559. " It is not for this Court to reconsider the tribunal's factual findings ": NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81] , [2006] FCAFC 195 ; 93 ALD 333 at 352 per Young J (Gyles and Stone JJ agreeing). Wherever the boundaries of jurisdictional error may be drawn, they do not comprehend errors of fact as to the merits of the case put to the Tribunal nor the weight to be attributed to evidence going to the issues raised before the Tribunal: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.
Case: SZHCK v Minister for Immigration [2008] FMCA 760
Outcome: cited
An application to review that third decision of the Tribunal was dismissed by the Federal Magistrates Court: SZHCK v Minister for Immigration [2008] FMCA 760. The Notice of Appeal as filed in this Court sets forth the following three Grounds of Appeal (without alteration): 1. The Federal Magistrates Court erred in not considering that the Refugee Review Tribunal (the Tribunal) wrongly observed that the applicant would not involve in the politics in future because of his personal circumstances, the applicant said this because he wanted to avoid harm for himself and for his family and for his child. The applicant still believe that he would not be able to decide freely if he goes back to India. 2. The Federal Magistrates Court also did not consider that the Tribunal made a jurisdictional error when the Tribunal found that the threat to the applicant were made for reason arising from their friendship with the applicant's father in law's associates but the Tribunal did not consider that the applicant were threatened two occasions by the associates of his father in law. 3. The Federal Magistrates Court erred in not considering that the Tribunal made a jurisdictional error by observing that the applicant would not have threat given the effluxion of time but the Tribunal failed to show that the applicant will not face persecution in future if he returns to India. 6 The Appellant husband appeared before this Court this morning unrepresented, although he did have the benefit of an interpreter. His wife did not appear. 7 None of the Grounds of Appeal have been made out and the appeal should be dismissed with costs.