mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: referred to
am persuaded to permit grounds 1 and 2 because of the decision of the Full Court in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Whilst the solicitor for the Minister has submitted that there are differences between this case and the underlying factual situation of that case, it seems to me that the applicant should not be shut out from seeking to bring himself within the rather ample boundaries set by that case if it is to be regarded as good law, and for present purposes I must so regard it. It is not appropriate for me to say any more than that I think that the rather liberal threshold has been met. I order that: (1) the time within which to file and serve a notice of appeal in the form initialled by me is extended to 5.00 pm on Monday 6 November 2006; (2) the costs of this application are the first respondent's costs in the appeal. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 7 November 2006 Solicitor for the Applicant: Mr D Knaggs of Cross Law Solicitor for the First Respondent: Ms Felicity Kerr of Blake Dawson Waldron Date of Hearing: 31 October 2006 Date of Judgment: 31 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1449.html
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 26
Outcome: cited
Scarlett FM correctly found that the Tribunal did not have any obligation to notify the applicant of any information under s 424A(1). The only information used by the Tribunal in an adverse way was derived from the applicant's oral evidence at hearing, and from general country information about Falun Gong practitioners and document fraud in China. The information from the oral evidence at hearing falls within the exception in s 424A(3)(b) , as it was information "that the applicant gave for the purpose of the application". The information from the general country information falls within the exception in s 424A(3)(a) , as it was "not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member": Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 26 at [71] - [73] ; [2004] FCAFC 264 ; (2004) 140 FCR 572, 586-587.
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Outcome: cited
The asserted basis for the allegation of bias was that the Tribunal did not believe the appellant. His Honour noted this to be a circular and unconvincing argument. There was no evidence of bias or bad faith in the decision of the Tribunal: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] - [44] . His Honour then considered whether the Tribunal refused the application without evidence, rejected this and had regard to the positive duty imposed on the Tribunal by s 65 of the Act to be positively satisfied that the relevant criteria for grant of a visa had been satisfied. 18 The third ground was dismissed by his Honour who found that the independent country information was irrelevant relating as it did to the Chinese Government crackdown on Falun Gong, the situation in Tianjin where the appellant claims to have taken up Falun Gong in 2001. The information concerned the years 2001-2006 and as his Honour found could not therefore be characterised as being out of date. 19 The Notice of Appeal contains the following grounds: '2. The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to inform me why the information is relevant to my application, and I was not given an opportunity to comment upon the reason. 3. The Tribunal had bias against me and did not consider all the information and evidence provided for my application for a protection visa. The Tribunal misunderstood my claims and could not consider my application according to s 91R of the Migration Act 1958 .' (Transcribed without alteration). 20 The first ground, in effect, alleges a breach of s 424A of the Act . The second asserts bias, that the Tribunal failed to consider all the information which accompanied the protection visa application and that it misunderstood his claims and could not consider his application according to s 91R of the Act . 21 The respondent made the following submissions: 23 It is well established that bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision maker. It must be clearly proved by evidence. It is rare for a Court to find that an administrative decision maker acted in bad faith, especially where the only thing said to be in support of this is the decision record: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48]. 24 There is no evidence of bias, or apprehended bias, in any of the material before the Court. The mere fact that the Tribunal found that the applicant was no credible, and did not believe the applicant's claims, does not establish bias on the part of the Tribunal member. 25 This ground is not particularised. There is no evidence to support the allegation that the Tribunal misunderstood any of the applicant's claims.
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319
Outcome: cited
The last two arguments under ground 2 were not agitated before Scarlett FM. In order to raise a new ground the appellant must demonstrate that it is expedient and in the interests of justice to allow the ground to be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; see also Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. Factors relevant to the Court's consideration include, inter alia, the appellant's prospects of success on appeal on the new ground: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] .
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
The last two arguments under ground 2 were not agitated before Scarlett FM. In order to raise a new ground the appellant must demonstrate that it is expedient and in the interests of justice to allow the ground to be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; see also Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. Factors relevant to the Court's consideration include, inter alia, the appellant's prospects of success on appeal on the new ground: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] .
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
The last two arguments under ground 2 were not agitated before Scarlett FM. In order to raise a new ground the appellant must demonstrate that it is expedient and in the interests of justice to allow the ground to be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; see also Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. Factors relevant to the Court's consideration include, inter alia, the appellant's prospects of success on appeal on the new ground: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] .
Case: Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 ; (2000) 105 FCR 39
Outcome: applied
In written submissions, the appellant contended that the MRT erred in law in regard to its finding that the nominator's depression did not amount to "other serious circumstances" within the meaning of regulation 1.03. Citing Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 ; (2000) 105 FCR 39 (" Wu ") per Heerey, Moore and Goldberg JJ, the appellant argued that the MRT mistakenly applied Hussein when it held that the words "death, disability or prolonged illness" constrain the meaning of "other serious circumstances". The appellant argued today that the MRT therefore failed to consider whether depression other than that defined as clinical or medical depression could amount to "other serious circumstance". 15 The first respondent also disputed that the MRT misapplied the definition of "serious circumstances." The first respondent argued that Wu did not support the view that "serious circumstances" should be understood independently of the nearby terms "death, disability or prolonged illness". Thus, in first respondent's submission, there was no error in the MRT's application of Hussein . 19 If it were necessary to do so, I would also reject the appellant's argument that the MRT misapplied the definition of "serious circumstances". Contrary to the appellant's submission, Wu is consistent with the view that the terms "death, disability or prolonged illness" are relevant to the meaning of "other serious circumstances". In fact, in Wu at [41], the Full Court held that a circumstance "is sufficiently serious [if], in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness". Thus, the Wu Court, like the MRT in this case, considered the meaning of "serious circumstances" in light of the nearby terms. It was clearly open to the MRT to decide that no "other serious circumstances" were present at the time of application. Even if Hussein no longer correctly states the law in all respects, the Tribunal's reliance on this decision did not lead it into relevant error.
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 ; (2001) 177 ALR 473
Outcome: referred to
Furthermore, in written submissions, citing Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 ; (2001) 177 ALR 473 (" Cohen ") per McHugh J, the first respondent claimed that as "serious circumstances" is used in its ordinary, non-technical sense, its meaning is a question of fact. Accordingly, the first respondent submitted that, even if the MRT did apply erroneous precedent concerning the meaning of "serious circumstances", this was not jurisdictional error. 20 As no error has been shown in the MRT's decision, I need not consider the significance of Cohen and whether or not any error of interpretation would have been a jurisdictional error. 21 I would order that the appeal be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 18 April 2006 Counsel for the Appellant: Mr A Hands Counsel for the Respondent: Ms C Symons Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 April 2006 Date of Judgment: 18 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/421.html
Case: Chow v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 88
Outcome: referred to
To be a special need relative, a visa applicant must be willing and able to provide substantial and continuing assistance: see, e.g., Chow v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 88 at [22] per Moore, Emmett and Bennett JJ. The language of regulation 1.03 makes this clear. 18 Because of the appellant's concession that it was open to the MRT to find that the assistance he provided to the nominator was not substantial, the appellant has also effectively conceded that it was open to the MRT to find that he did not satisfy a necessary requirement of the visa. The appeal must be dismissed if only for this reason.
Case: Coombes v Registrar of Aboriginal Corporations [2008] FCA 321
Outcome: referred to
I delivered judgment in this matter on 7 March 2008: Coombes v Registrar of Aboriginal Corporations [2008] FCA 321. I reserved the question of costs, and gave the parties the opportunity to exchange written submissions on costs.
Case: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: referred to
Both the first and second respondents seek costs of the proceedings to date on an indemnity basis against the applicants, relying upon the principles discussed in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 223-234 and alternatively party and party costs. The applicants contend that no order as to costs should be made at all in the circumstances. 3 In the proceeding the applicants unsuccessfully sought orders requiring the second respondent, the Administrator of the Nyangatjatjara Aboriginal Corporation (NAC) under the Aboriginal Councils and Associations Act 1976 (Cth) (the Act), to take certain steps in the administration relating to the preparation of a Register of Members, to the calling of certain general meetings, and to the preparation of certain reports with a view to having the NAC return to the control of its members. They also unsuccessfully sought orders requiring the first respondent to require the second respondent to establish a current Register of Members of the NAC and for declaratory orders as to the proper operation of the Act. 4 In my view the application for indemnity costs should be refused.
Case: Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1998) 81 ALR 397
Outcome: referred to
Although I concluded, for the reasons I expressed, that the applicants' claims should not succeed, that was a view reached after hearing all of the evidence. By way of an extreme example, had there been total inactivity by the second respondent appointed under the Act, and had the first respondent been indifferent to that circumstance, the Court may have concluded that some error of law underlay that inactivity. The point is that the conclusions generally depended upon findings made on the evidence. There were some orders sought which I found simply not to be available as a matter of law, but on those matters the hearing including submissions was relatively brief in the context of the entire hearing. I do not therefore consider, viewed overall, that the applicants' claims were so unreasonable or so unlikely to succeed, or that they conducted their case in such a manner, that an award of indemnity costs should be made. Compare Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1998) 81 ALR 397 at 401.
Case: Ruddock v Vadarlis (2001) 115 FCR 229
Outcome: discussed
Reference was made to the decisions of Ruddock v Vadarlis (2001) 115 FCR 229 and Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (No 2) [2008] FSC 152. The Court declined to order costs against the unsuccessful appellant because the unusual circumstances of the case involved matters of high public importance and raised the question of the liberty of individuals who could not take action on their own behalf in the determination of their rights. In declining to order costs, the Court considered inter alia, the fact that the proceedings raised novel and important questions of law in relation to the alleged deprivation of liberty of individuals, executive power of the Commonwealth, and the operation of the Migration Act 1956 (Cth). Judicial opinion was divided. There was also no direct or financial gain to those respondents in pursuing the matter.
Case: Donald Campbell &amp; Co v Pollack [1927] AC 732
Outcome: cited
Generally, a successful respondent, in the absence of special circumstances, has a reasonable expectation of obtaining an order for the payment of costs by the applicant. However, the Court has a discretion to make no order for costs against a successful respondent if the particular circumstances warrant it: see Donald Campbell &amp; Co v Pollack [1927] AC 732 at 810-812. In Schaftenaar v Samuels (1975) 11 SASR 266 ( Schaftenaar ), Wells J at 273-275 discerned guiding principles for the exercise of the discretion. In essence, the Court is entitled to take into account any facts connected with or leading up to the hearing which have been satisfactorily proved or which have been observed during the progress of the case. If there has been conduct on the part of the respondent such as to lead the applicant reasonably to think that he or she had a good cause of action against them; or if the respondent has engaged in misconduct in the course of and in connection with the litigation, the discretion may be exercised to make no order for costs against a successful party. I think the present circumstances, for the reasons I have given, place this matter in the area where that discretion might be exercised, although they do not clearly fall into either of the two categories specifically mentioned in the preceding sentence. Obviously, they can only be illustrative and not definitive.
Case: Schaftenaar v Samuels (1975) 11 SASR 266
Outcome: discussed
Generally, a successful respondent, in the absence of special circumstances, has a reasonable expectation of obtaining an order for the payment of costs by the applicant. However, the Court has a discretion to make no order for costs against a successful respondent if the particular circumstances warrant it: see Donald Campbell &amp; Co v Pollack [1927] AC 732 at 810-812. In Schaftenaar v Samuels (1975) 11 SASR 266 ( Schaftenaar ), Wells J at 273-275 discerned guiding principles for the exercise of the discretion. In essence, the Court is entitled to take into account any facts connected with or leading up to the hearing which have been satisfactorily proved or which have been observed during the progress of the case. If there has been conduct on the part of the respondent such as to lead the applicant reasonably to think that he or she had a good cause of action against them; or if the respondent has engaged in misconduct in the course of and in connection with the litigation, the discretion may be exercised to make no order for costs against a successful party. I think the present circumstances, for the reasons I have given, place this matter in the area where that discretion might be exercised, although they do not clearly fall into either of the two categories specifically mentioned in the preceding sentence. Obviously, they can only be illustrative and not definitive. 31 No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.
Case: Robertson &amp; Moffat v Belson [1905] VLR 555
Outcome: cited
The courts have been careful not to use the discretion as a punishment or a penalty for disapproval of conduct leading up to and during the litigation. However, the courts most commonly speak about requiring "good cause" in order to depart from the usual costs order. Whether such good cause exists is always a matter of judgment: see Robertson &amp; Moffat v Belson [1905] VLR 555 at 562 per Madden CJ. The judge's discretion is to be exercised in accordance with the justice of the case, the relevant test being "whether it would be more fair as between the parties that some exception should be made to the general rule": see Cates v Glass [1920] NZLR 37 at 68 per Edwards J.
Case: Cates v Glass [1920] NZLR 37
Outcome: cited
The courts have been careful not to use the discretion as a punishment or a penalty for disapproval of conduct leading up to and during the litigation. However, the courts most commonly speak about requiring "good cause" in order to depart from the usual costs order. Whether such good cause exists is always a matter of judgment: see Robertson &amp; Moffat v Belson [1905] VLR 555 at 562 per Madden CJ. The judge's discretion is to be exercised in accordance with the justice of the case, the relevant test being "whether it would be more fair as between the parties that some exception should be made to the general rule": see Cates v Glass [1920] NZLR 37 at 68 per Edwards J.
Case: Jones v Curling (1884) 13 QBD 262
Outcome: cited
No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.
Case: Huxley v West London Extension Railway Co (1889) 14 App Cas 26
Outcome: cited
No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.