mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZKIB v Minister for Immigration [2008] FMCA 769
Outcome: considered
The appellant is a citizen of the People's Republic of China. She applied for a protection visa on 13 September 2006. The application was refused by a delegate of the Minister on 10 October 2006. In a decision signed on 29 October 2007, the Refugee Review Tribunal affirmed the decision of the delegate. This was the second decision of the Tribunal in relation to the appellant's application for a protection visa. An application for review of the second Tribunal decision was dismissed by Smith FM ( SZKIB v Minister for Immigration [2008] FMCA 769). 2 The appellant claimed to fear persecution in China due to her implied anti-government opinion. Her claims related broadly to the fact that her husband had been imprisoned and to her own activities following her husband's imprisonment in connection with a teacher, Ms L. The Tribunal accepted that the appellant's husband had been imprisoned but it did not accept the appellant's claims in relation to her own actions which formed the basis of her claim to fear persecution. The Tribunal was not satisfied that the appellant had distributed petitions prepared by Ms L or organised a protest after Ms L was arrested. Those findings were based upon the Tribunal's assessment of the appellant's credibility. 3 The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention, and it affirmed the decision of the delegate of the Minister not to grant a protection visa to the appellant.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
Devers's submissions relied on Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 to suggest that her evidence should be accepted uncritically on several issues. Many of the issues which her counsel referred to were ones on which Focus called evidence from its witnesses. As counsel for Focus observed, the principle in Jones v Dunkel will not assist in the creation of evidence, merely the drawing of inferences where this is supported by Ms Devers's evidence. The evidence before the Court on the relevant issues raised by Ms Devers's application does not lead to the application of Jones v Dunkel , as there is nothing to suggest that Focus failed to called evidence on any matters of material significance from witnesses it would have been expected to call. The Act renders unlawful conduct which constitutes discrimination on the ground of disability in the context of employment. At all material times, s 15 of the Act relevantly provided: (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates: (a) in the arrangements made for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates: (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. For the discrimination alleged to have been unlawful, it must have occurred "on the ground" of Ms Devers's disability. The discrimination may have been either direct or indirect discrimination as defined in the Act.
Case: Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349
Outcome: referred to
a "requirement or condition" has been imposed on a person is a question of fact; see Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ, 408 per McHugh J and see also Catholic Education Office v Clarke (2004) 138 FCR 121 at [102] per Sackville and Stone JJ. The phrase "requirement or condition" in s 6 of the Act is to be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition itself should be formulated with some precision; see Clarke at [103] and Australian Iron and Steel Proprietary Limited v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 185 per Dawson J. An alleged discriminator may be found to have insisted on compliance with a requirement or condition within the meaning of s 6 of the Act even though the requirement or condition is not explicitly imposed. It is sufficient that the requirement or condition is implicit in the conduct that is said to constitute indirect discrimination; see Waters at 360 per Mason CJ and Gaudron J, 392 per Dawson and Toohey JJ and 407 per McHugh J. For example, the Court in Waters considered that it was open to the trial judge to find that the removal of conductors from trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use trams without the assistance of conductors; at 361 per Mason CJ and Gaudron J.
Case: Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121
Outcome: referred to
a "requirement or condition" has been imposed on a person is a question of fact; see Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ, 408 per McHugh J and see also Catholic Education Office v Clarke (2004) 138 FCR 121 at [102] per Sackville and Stone JJ. The phrase "requirement or condition" in s 6 of the Act is to be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition itself should be formulated with some precision; see Clarke at [103] and Australian Iron and Steel Proprietary Limited v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 185 per Dawson J. Several cases have characterised the requirement to participate and receive classroom instruction without Auslan interpreters as a "requirement or condition" within the meaning of s 6 of the Act; see eg, Clarke and Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In Clarke both the trial judge and Full Court found that not providing Auslan interpreters to a student with a hearing disability imposed a condition on him with which he could not comply; at [11] per Tamberlin J, [126] per Sackville and Stone JJ. Similarly, the Court in Hurst held that a student would be "denied the opportunity to achieve her full potential" if she were required to undertake her education without the assistance of Auslan interpreters; at [130] per Ryan, Finn and Weinberg JJ. Focus submits that cases such as Clarke and Hurst must be treated with caution as they are education, rather than employment, cases. Ms Devers contends that these principles apply to both educational situations and her ability to participate in staff meetings and professional development. In particular, she argues that it was not sufficient for her to simply "cope" by attending some of the required training sessions and staff meetings and access the information through written English. Ms Devers alleges that she was denied meaningful access to her employment as she could not comply with the requirements imposed. Moreover, counsel for Ms Devers argues that Focus's submission that she accessed her employment as she attended work and received her wages over a number of years ignores the conditions of her employment which caused her detriment.
Case: Australian Iron and Steel Proprietary Limited v Banovic [1989] HCA 56 ; (1989) 168 CLR 165
Outcome: referred to
a "requirement or condition" has been imposed on a person is a question of fact; see Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ, 408 per McHugh J and see also Catholic Education Office v Clarke (2004) 138 FCR 121 at [102] per Sackville and Stone JJ. The phrase "requirement or condition" in s 6 of the Act is to be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition itself should be formulated with some precision; see Clarke at [103] and Australian Iron and Steel Proprietary Limited v Banovic [1989] HCA 56 ; (1989) 168 CLR 165 at 185 per Dawson J. The next step in determining whether indirect discrimination has occurred within the meaning of s 6 of the Act is to identify "an appropriate base group" with which to compare the individual alleging indirect discrimination in order to assess whether a substantially higher proportion of the individuals in the base group are able to comply with the requirement or condition; see Banovic at 178 9 per Deane and Gaudron JJ, 187 per Dawson J. Ability to comply
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1994) 183 CLR 273
Outcome: distinguished
is a State Party to the Convention on the Rights of Persons with Disabilities , opened for signature 13 December 2006, [2008] ATS 12 (entered into force 3 May 2008). However, this does not lead to the conclusion that the requirement or condition imposed by Focus was not reasonable. It is well settled that the mere fact of ratification does not import any rights or obligations into domestic law; see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1994) 183 CLR 273 at 286 7 per Mason CJ and Deane J, 315 per McHugh J and see also Nulyarimma v Thompson [1999] FCA 1192 ; (1999) 96 FCR 153 at [20] per Wilcox and Whitlam JJ. A convention may aid in interpretation of an Act where there is ambiguity but the Convention cannot be relied on to reach the conclusion that the requirement or condition was not reasonable; see Teoh at 287 per Mason CJ and Deane J. The relevant terms of the Act are unambiguous and the situation is not one of legitimate expectations created by a decision maker as described in Teoh . The Convention is irrelevant to the present proceeding.
Case: Nulyarimma v Thompson [1999] FCA 1192 ; (1999) 96 FCR 153
Outcome: referred to
is a State Party to the Convention on the Rights of Persons with Disabilities , opened for signature 13 December 2006, [2008] ATS 12 (entered into force 3 May 2008). However, this does not lead to the conclusion that the requirement or condition imposed by Focus was not reasonable. It is well settled that the mere fact of ratification does not import any rights or obligations into domestic law; see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1994) 183 CLR 273 at 286 7 per Mason CJ and Deane J, 315 per McHugh J and see also Nulyarimma v Thompson [1999] FCA 1192 ; (1999) 96 FCR 153 at [20] per Wilcox and Whitlam JJ. A convention may aid in interpretation of an Act where there is ambiguity but the Convention cannot be relied on to reach the conclusion that the requirement or condition was not reasonable; see Teoh at 287 per Mason CJ and Deane J. The relevant terms of the Act are unambiguous and the situation is not one of legitimate expectations created by a decision maker as described in Teoh . The Convention is irrelevant to the present proceeding.
Case: Banque Commerciale SA en liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: applied
stated by Mason CJ and Gaudron J in Banque Commerciale SA en liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286: The function of pleadings is to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her, and to define the issues for decision. See also Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883 at [4] [5] per Finkelstein J. The allegation that Ms Devers was subject to unspecified "restrictions that hearing staff were not subject to" fails to enable Focus or this Court to determine what allegations of discriminatory treatment are made.
Case: Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883
Outcome: cited
stated by Mason CJ and Gaudron J in Banque Commerciale SA en liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286: The function of pleadings is to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her, and to define the issues for decision. See also Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd [2002] FCA 883 at [4] [5] per Finkelstein J. The allegation that Ms Devers was subject to unspecified "restrictions that hearing staff were not subject to" fails to enable Focus or this Court to determine what allegations of discriminatory treatment are made.
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: applied
Devers has not succeeded in establishing any direct or indirect discrimination by Focus. The application is dismissed. There are no special or unusual circumstances in this proceeding which dictate that costs should not follow the event; see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J. I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 27 November 2009 Counsel for the Applicant: Mr D J Hancock Solicitor for the Applicant: Access Law Counsel for the Respondent: Mr R A Millar Solicitor for the Respondent: Middletons Dates of Hearing: 25-28 May, 1-4 June and 31 August 2009 Date of Judgment: 27 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1392.html
Case: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Outcome: cited
With regard to the third ground, the learned Federal Magistrate referred to the observation by Gleeson CJ in Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] where Gleeson CJ said: '... to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.' The learned Federal Magistrate said, in relation to the third ground, that no such precision had been provided. 20 The learned Federal Magistrate found no other possible assertion of jurisdictional error apparent from his own reading of the Tribunal decision and the book of relevant documents. He found that the Tribunal decision was free from jurisdictional error. He dismissed the judicial review application with costs. 21 The grounds of appeal stated, in the notice of appeal filed on 15 February 2006, are: '2. I was refused natural justice. 3. The Tribunal identified the wrong issue. 4. The Tribunal made jurisdictional error.'
Case: A v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 227
Outcome: cited
In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.
Case: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510
Outcome: followed
When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ.
Case: Aporo v Minister for Immigration &amp; Citizenship [2008] FCA 102
Outcome: cited
Although the decision of the Tribunal was not susceptible of appeal, original jurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal's decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution . In order to obtain relief in this Court's original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration &amp; Citizenship [2008] FCAFC 160 at [4] . The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration &amp; Citizenship [2008] FCA 102 ; see also: Green v Minister for Immigration &amp; Citizenship [2008] FCA 125 at [21] [29], [2008] FCA 125 ; 100 ALD 346) ; nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise.
Case: Australian Trade Commission v F &amp; F Asia Pty Ltd (1996) 69 FCR 252
Outcome: applied
In determining the " correct or preferable " decision the Tribunal must also be satisfied that there is " enough material " before it on a matter of central importance to the decision to be reached ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t] he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F &amp; F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).
Case: Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 , 120 FCR 1
Outcome: followed
Although the constraint imposed by s 476A(1) cannot be disregarded, it did not appear that anything would have been gained had the Applicant been directed to file an application seeking judicial review as opposed to treating the Notice of Appeal as though it were such an application. The Minister did not oppose this course. It is not considered that such a direction would have facilitated the expeditious hearing and resolution of the proceeding. The matter first came before the Court on 13 October 2008. The Applicant was then in detention at Villawood Detention Centre and it was desirable to have his grievances resolved as quickly as was consistent with a proper resolution of the issues raised in his Notice of Appeal . It is the practice of this Court to hear such cases as quickly as possible: eg, Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 at [42] , [2002] FCA 594 ; 120 FCR 1 at 11; SZLMA v Minister for Immigration &amp; Citizenship [2008] FCA 69 at [1] . With the co-operation of those appearing for the Respondent Minister, arrangements were made to have the relevant evidence filed and served by 15 October 2008. The matter was listed for final hearing on 17 October 2008.
Case: Black v Minister for Immigration &amp; Citizenship [2007] FCAFC 189 , 99 ALD 1
Outcome: applied
The fact that the Tribunal did not use the language of " hardship " that would be suffered by the Applicant -- as opposed to the " hardship " that would be occasioned to others -- it is considered, is not decisive. That which is decisive against the Applicant is the fact that the Tribunal considered the entirety of the evidence, including the evidence as to the effect that the decision would have upon him. Subject to a proper application of Direction No 21 , the weight to be given to the considerations addressed is a matter for the Tribunal alone: cf Black v Minister for Immigration &amp; Citizenship [2007] FCAFC 189 at [33] [37], [2007] FCAFC 189 ; 99 ALD 1 at 8 9; Tapel v Minister for Immigration &amp; Citizenship [2008] FCA 857 at [27] .
Case: Bushell v Repatriation Commission (1992) 175 CLR 408
Outcome: followed
The task to be undertaken by the Tribunal in the present proceeding -- as in other applications coming before it -- was essentially a consideration of the evidence adduced and the submissions advanced. Its task was to resolve the case sought to be advanced by the parties in a manner consistent with determining the " correct or preferable decision ". That task was one of determining the correct or preferable decision on the basis of the material then before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Bowen CJ and Deane J there held (at 419): The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. These observations are oft cited with approval: eg, Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. See also: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.