mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578
Outcome: referred to
the present proceeding, three considerations (at least) warrant attention, namely: to raise on appeal grounds not previously relied upon requires the leave of the Court; the role of this Court as an appellate court and the role that this Court plays in respect to any subsequent application that may be made to appeal to the High Court of Australia; and relevant to the grant or refusal of leave are various factors, including the fact that a ground sought to be raised was previously abandoned. Although these three considerations may be separately identified, consideration of any one of them may well overlap with consideration of another. Each of these considerations has also been repeatedly addressed in decisions of this Court &#8212; but some brief overview of these considerations is perhaps appropriate, lest the Appellant be left with the impression that his appeal has been dismissed on a " technicality " divorced from principle or merit. It is in that context that a fourth consideration should also be addressed, namely: the merit of the new grounds sought to be raised. The serious consequences that may attend a wrongful refusal of a protection visa may also be taken into account when determining whether it is expedient in the interests of justice that leave be given: SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] per Branson J. The serious consequences that attend the refusal of leave to raise a new ground in any appeal is, however, a matter warranting careful consideration and migration cases &#8212; it is considered &#8212; attract no different consideration: cf SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [9] .
Case: SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343
Outcome: cited
SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343 , Perram J reviewed some of these different outcomes as follows: [19] It is then useful to say something about the Tribunal's confusion of the Appellant's membership of the Lebanese forces with membership of the Lebanese Armed Forces. In the Appellant's amended application to the Federal Magistrates Court such a claim was expressly included. However, at the hearing in the Federal Magistrates Court the Appellant, who was represented by counsel, abandoned that argument. There may be some circumstances in which an appellate court will permit a party who has expressly abandoned a point at trial to raise it afresh on appeal. Gyles J would have permitted such a course in Dovuro v Wilkins [2000] FCA 1902 ; (2000) 105 FCR 476 at 527 [181] at least where the point involved no prejudice to the other party. Branson and Finkelstein JJ took the opposite view: 487 488 [38] and 508 509 [119] [120]. There may be something to be said for the view that where a point is expressly abandoned that the doctrine of waiver is relevant to the question: cf. Browne v Dunn (1894) 6 R 67 at 75 per Lord Halsbury, 80 per Lord Bowen; applied by the Privy Council in Yorkshire Insurance Co v Craine [1922] 2 AC 541 at 552 553 per Lords Buckmaster, Atkinson, Sumner, Parmoor and Wrenbury. If that were so, the question of whether an appellate court should entertain a fresh ground might not be relevant &#8212; there might be no ground to raise. However, whether the question is posed as one about the circumstances in which an appellate court should permit a point abandoned below to be resurrected on appeal, or, instead, one of waiver leading to the conclusion that the point no longer juridically exists &#8212; the outcome is the same in this case. I would not permit the abandoned ground to be entertained. It is not necessary in the present appeal to pursue His Honour's views as to the possible application of the doctrine of waiver.
Case: SZMRD v Minister for Immigration and Citizenship [2009] FCA 598
Outcome: referred to
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 , Lander J was confronted with an application for leave to amend a Notice of Appeal and an application to adduce further evidence, being the transcript of the proceeding before the Tribunal. In refusing leave to amend, His Honour referred to those principles relevant to the grant of leave to raise new grounds on appeal but further observed (in part): [21] Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal. ... [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. [26] Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. These observations of His Honour were recently endorsed by Spender J in SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 at [11] .
Case: SZNSC v Minister for Immigration and Citizenship [2009] FMCA 945
Outcome: affirmed
25 September 2009, the Federal Magistrate dismissed the Application: SZNSC v Minister for Immigration and Citizenship [2009] FMCA 945. In dismissing the Application , the Federal Magistrate not only resolved the remaining Ground ; he also considered the five Grounds as originally expressed in the Application as initially filed. The Federal Magistrate further concluded that none of these Grounds " were of any assistance to [the Applicant] ": [2009] FMCA 945 at [97] . A Notice of Appeal was filed in this Court on 13 October 2009. The Grounds of Appeal were there set forth as follows (without alteration): 1) The decision of Respondent is effected by the jurisdictional error by failing to assess or carry out the 'real chance' test, before dismissing appellant claims that respondent failed to analyse properly the "future harm" appellant may face if he go back to Pakistan. 2) The appellant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the respondent 1 decision. Respondent has not consider this aspect and therefore committed factual and legal error. 3) The respondent has failed to investigate application claim specially the grounds of persecution in Pakistan. Therefore the Respondent decision dated 6-6-2009 was effected by actual bias constituting jurisdictional error. 4) The Respondent decision was unjust and was made without taking into account the full gravity of appellant circumstances and the consequence of the claim. 5) The respondent denied the appellant procedural fairness by reaching adverse conclusion the appellant was not a witness of truth being conclusion the were not obviously open on the known material, without giving the appellant opportunity to be heard in respect of those matters. 6) The respondent had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the requirement of the Migration Act. 7) In term of order case the Respondents said that there is no basis to proof characteristic against Appellant, there is no basis of this as such the Respondent made an error in making this decision. The Grounds of Appeal , it will be noticed, have much in common with the Grounds upon which the Application was initially sought to be advanced before the Federal Magistrate &#8212; but abandoned or, at least, not pressed &#8212; and little (if anything) in common with the sole Ground which was ultimately advanced for resolution before the Federal Magistrate.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: discussed
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the grant of leave was thus addressed by reference to whether it was " expedient in the interests of justice " to grant leave. Kiefel, Weinberg and Stone JJ there concluded (citations omitted): [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... Their Honours referred to Coulton [1986] HCA 33 ; (1986) 162 CLR 1 and continued: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. 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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT [2005] FCAFC 134 at [163] , 147 FCR at 84 per Madgwick J (Conti J agreeing).
Case: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 , 204 ALR 624
Outcome: cited
To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant ": WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19] , [2004] FCA 106 ; 204 ALR 624 at 629 per French J. Differing factors have been identified in respect to whether a ground which has been expressly abandoned at first instance should later be permitted to be " resurrected " on appeal.
Case: White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 , 96 FCR 511
Outcome: referred to
are unquestionably instances where an argument has been permitted to be raised on appeal even though " unequivocally disclaimed " before the primary judge: e.g. CA Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [30] to [35], 52 IPR 42 at 57 to 60. In the specific context of migration cases, leave to raise on appeal an argument abandoned before a Federal Magistrate may thus be permitted where (for example) there has been " an error of judgment by [an appellant's] counsel in abandoning a point which had originally been taken, and which was plainly viable ": White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [35] , [2000] FCA 232 ; 96 FCR 511 at 519; SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [36] , [2007] FCA 765 ; 96 ALD 70 at 77.
Case: Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516
Outcome: applied
A critical factor in the exercise of the discretion is a consideration of the merits of the substantive application. This informs the exercise of the discretion and the nature of what amount to "special reasons" in any particular case. In considering the merits of the appeal, an applicant will not ordinarily have to demonstrate that there are reasonable prospects of success. The authorities to which Mr Bozic referred in his written submissions are to the effect that the Court will generally only exercise its discretion against granting leave if the appeal is so devoid of merit that it would be futile to extend time. This was said by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 ALR 516 at [7]. Other authorities to similar effect were set out in Mr Bozic's written submissions. 17 The Minister's solicitor submitted in her helpful written submissions that the four grounds of appeal appear to be hopeless and that no point would be served in granting an application for an extension of time. She observed that each of the four grounds appears to face difficulties of a number of authorities which would point against the success of the appeal. 18 Notwithstanding this, and bearing in mind that the delay is relatively short and has been explained in a way which I consider to be satisfactory, I think that there are special reasons. It is, in my view, sufficient to say that I do not consider the four grounds stated in the draft notice of appeal to be hopeless. I do not consider that there would be no point in granting the extension of time to argue those points on appeal.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: referred to
The leading authority on the question of the meaning of the term "special reasons" is Jess v Scott (1986) 12 FCR 187. The relevant passage of the judgment of the Full Court is set out at 195 and it has been cited on many occasions; it is not necessary for me to quote from the passage. 5 The proposed Notice of Appeal raises four grounds of appeal to which I will refer later. It is sufficient to say that the four grounds seek to re-agitate the matters upon which the applicant was unsuccessful before Cameron FM. 6 The Minister opposes the application on two bases. First, the Minister's solicitor submits that the applicant has not established special reasons within the test stated in Jess v Scott . She submits that mere inadvertence of itself does not amount to a special reason.
Case: Minister for Immigration and Multicultural Affairs v Kabail (1998) FCA 1320
Outcome: distinguished
In Minister for Immigration and Multicultural Affairs v Kabail (1998) FCA 1320 (" Roda Kabail "), Tamberlin J declined to exercise his discretion to extend time under the rule. The Minister places considerable reliance upon the decision. It is true that Tamberlin J said in Roda Kabail that, essentially, the basis that was put forward for the application was one of inadvertence. His Honour went on to say that this of itself is not sufficient to establish a special reason, but it is important to note that he also observed that inadvertence can, of course, be taken into account. 8 It seems to me that the decision in Roda Kabail is distinguishable from the present application. As Tamberlin J observed in his reasons for judgement: In the final analysis little real assistance can be gained from comparing different factual situations. The characterisation of "special reasons"...is a matter which is both discretionary and fact specific. 9 In Roda Kabail the application for an extension of time was made by the Minister, and his Honour observed that a significant difference between that case and the other ealier authorities that were referred to was that the applicant in the proceedings was held in detention with her three children. That was a matter which his Honour weighed heavily in the balance against the exercise of the discretion. However, here it seems to me that the circumstances are sufficiently different so that, to adopt Tamberlin J's language, the fact situation in that case is of "little real assistance" to me in dealing with this morning's application.
Case: WAAD v Minister for Immigration &amp;Multicultural Affairs (2002) FCAFC 399
Outcome: applied
In my view, the approach which is to be adopted in applications such as this is that which was stated by a Full Court in WAAD v Minister for Immigration &amp;Multicultural Affairs (2002) FCAFC 399 at [7] . The Full Court in that case observed that the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. A number of authorities were cited in support of that proposition. Their Honours went on to say that: So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted. 11 Here the delay is comparatively short and there is, in my view, an acceptable explanation for it. I will come back to that shortly. That is one of the factors to be taken into account in the exercise of the Court's discretion. 12 Another is the question of whether the respondent to the proceedings has suffered any prejudice by reason of the delay. Here the Minister does not point to any prejudice other than the need, if an extension of time is granted, to resist an appeal which, on the Minister's submission, is a hopeless one. Again, I will return to that issue later.
Case: SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543
Outcome: followed
An extension of time is necessary because there is an implied time limit of 21 days after the date of the interlocutory judgment in which to file an application to this Court: SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543 at [9] per Lindgren J. 9 It is considered that the Application for Leave to Appeal to this Court should be dismissed. 10 There has been no explanation forthcoming as to why the Application was not filed within time. The First Applicant appeared in person before this Court unrepresented, although he did have the benefit of an interpreter. He was not only present when the Federal Magistrate dismissed the application to that Court; he was also aware at that time that there was a time limit within which any application to this Court was to be filed. The only explanation for the delay which was advanced was his belief that his " lawyer " would do that which was necessary. The " lawyer ", however, was someone he had never met, but a person to whom a " fee " was apparently paid.
Case: SZLYO v Minister for Immigration [2008] FMCA 691
Outcome: cited
An amended application as filed in the Federal Magistrates Court on 19 May 2008 contended that the Tribunal had failed to comply with s 425 of the 1958 Act. The First Applicant appeared before the Federal Magistrates Court on that date but the application was dismissed: SZLYO v Minister for Immigration [2008] FMCA 691. The application was dismissed under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 4 An Application for Leave to Appeal was filed in this Court on 3 July 2008. 5 There are two difficulties confronting the Applicants -- first, it is necessary to obtain leave to appeal; second, an extension of time is necessary in order to make any such application.
Case: Barrier Wharfs Ltd v W Scott Fell &amp; Co Ltd (1908) 5 CLR 647
Outcome: cited
called "post contractual" conduct is admissible on the question whether a contract has been formed: Howard Smith &amp; Co Ltd v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, Barrier Wharfs Ltd v W Scott Fell &amp; Co Ltd (1908) 5 CLR 647 at 668-669, 672 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [25] .
Case: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153
Outcome: cited
called "post contractual" conduct is admissible on the question whether a contract has been formed: Howard Smith &amp; Co Ltd v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, Barrier Wharfs Ltd v W Scott Fell &amp; Co Ltd (1908) 5 CLR 647 at 668-669, 672 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [25] .
Case: Cheshire and Fifoot's Law of Contract (9th ed, LexisNexis, 2008)
Outcome: cited
reasonable observer's answer would be the same if the matter is approached more broadly than by way of the confines of offer and acceptance. While offer and acceptance may be the primary mode of ascertaining the existence of an agreement, in an appropriate case, including where there is no readily identifiable offer and acceptance, a court may look at the matter more broadly by asking whether, objectively and having regard to the totality of the dealings between the parties, they should be considered to have entered into a contractual relationship without inquiring too closely into the formalities of offer and acceptance: see Cheshire and Fifoot's Law of Contract (9th ed, LexisNexis, 2008) at 97 and Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 79-83. For the reasons given at [8], the objective observer would not conclude that the fax enabled Mr Furman's approval alone to bring a concluded agreement into existence.
Case: Howard Smith &amp; Co Ltd v Varawa [1907] HCA 38 ; (1907) 5 CLR 68
Outcome: cited
called "post contractual" conduct is admissible on the question whether a contract has been formed: Howard Smith &amp; Co Ltd v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, Barrier Wharfs Ltd v W Scott Fell &amp; Co Ltd (1908) 5 CLR 647 at 668-669, 672 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [25] .
Case: Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32
Outcome: cited
reasonable observer's answer would be the same if the matter is approached more broadly than by way of the confines of offer and acceptance. While offer and acceptance may be the primary mode of ascertaining the existence of an agreement, in an appropriate case, including where there is no readily identifiable offer and acceptance, a court may look at the matter more broadly by asking whether, objectively and having regard to the totality of the dealings between the parties, they should be considered to have entered into a contractual relationship without inquiring too closely into the formalities of offer and acceptance: see Cheshire and Fifoot's Law of Contract (9th ed, LexisNexis, 2008) at 97 and Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 79-83. For the reasons given at [8], the objective observer would not conclude that the fax enabled Mr Furman's approval alone to bring a concluded agreement into existence.