mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
In Guo at 573, the High Court also affirmed what was said in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281, that an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test. 46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear as discussed by the High Court in Guo and Wu Shan Liang , whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. There are, however, limits to the application of this principle, known as the "what if I am wrong" test. This does not preclude the Tribunal making a finding with certainty. It is where the Tribunal is uncertain as to whether an alleged event occurred or finds that the event might have occurred that it should, in considering the ultimate question, take into account the possibility that it did take place (at [62]).
Case: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
The appellant asserts that he never said to the Tribunal that he found out about the charges against Mr Ibrahim later and that the Tribunal used trivial matters and incomplete information to make a credibility finding against him. The appellant also asserts that actual charges against Mr Ibrahim were immaterial because the appellant was protesting the political persecution of Mr Ibrahim rather than the specific charges laid. Therefore, he submits, the Tribunal's decision was not based on findings of fact that were grounded upon probative material and logical grounds. If so, the Tribunal's decision may be subject to review ( Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [145] per Gummow J). 26 The Tribunal identified the bases for its conclusions, being the responses provided by the appellant to the Tribunal's questioning concerning the charges brought against Mr Ibrahim. These responses are supported by the transcript.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: cited
The appellant submits that it is evident from the Tribunal decision that the Tribunal was not confidently satisfied that the events did not take place. The appellant submits that the inadequacy of the evidence cited by the Tribunal to support its findings gives rise to the inference that it was not confidently satisfied that the past events did not take place as the appellant claimed ( Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [36] per McHugh and Gummow JJ). The appellant accepts that the attribution of greater weight to one piece of information as against another is not necessarily inconsistent with the correct application of Chan . He argues, however, that this is only appropriate when the question of whether each persecutory event of significance occurred is assessed on real chance and not on probability.
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
The Tribunal was entitled to have regard to and base findings on the appellant's demeanour while giving evidence ( Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [34] ; W148/00A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703 at [64] ). However, in assessing the appellant's credibility, the Tribunal's findings were not made on demeanour alone. The Tribunal assessed the appellant's claims and made findings on credibility that it explained; based on its observation of the appellant, the way he presented his claims, the lack of consistency that it discerned in the claims made and what it found to be implausible. Those were findings of fact for the Tribunal. 34 The appellant points to the test in Ex parte H at [27] where the Court expressed the test for apprehended bias as ' whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided '. The appellant submits that the fair-minded observer of this case would conclude that since there was nothing the Tribunal could find against the appellant on any substantive matters, it ' picked on trivial matters to deny the application ' and accordingly demonstrated bias. 35 Federal Magistrate Smith found that the Tribunal's ultimate reasons for rejecting the credibility of the appellant carried no suggestion of bias, or of a closed mind before the Tribunal arrived at its findings (at [51]). His Honour said that he could find no evidence suggesting that the proceedings of the Tribunal might give rise to a reasonable apprehension that the Tribunal might have closed its mind to the merits of the matter (at [52]).
Case: SAAK v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 367 ; (2002) 121 FCR 185
Outcome: cited
The appellant contends that Smith FM erred in this finding and that the appellant's manner could have been ascertained by his Honour examining the transcript and listening to the tapes. The appellant points to several authorities that caution against findings made by reference to demeanour alone: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 583 per Kirby J at [88]; WAEJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 188 ; (2003) 76 ALD 597 at [17] [18] referring to SAAK v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 367 ; (2002) 121 FCR 185 at [21] [31].
Case: SBBS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2002) 194 ALR 749
Outcome: applied
The circumstances in which a court will find that an administrative decision-maker has not acted in good faith are rare ( SBBS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2002) 194 ALR 749 at [44]). Bad faith must be clearly alleged and proved ( SBBS at [43]). There is nothing on the face of the Tribunal's reasons that gives rise to a suggestion that the Tribunal was biased or to a reasonable apprehension of bias on the part of the Tribunal. The Tribunal gave detailed and considered reasons for its rejection of the appellant's claim. The mere making of findings adverse to the appellant does not indicate bias or apprehended bias. Even if the appellant could establish error or irrationality on the part of the Tribunal, mere error or irrationality does not demonstrate a lack of good faith ( SBBS at [45]). 37 I have rejected grounds one to three above on which the appellant relies to establish bias but, even considered cumulatively, they do not demonstrate actual or apprehended bias. The appellant submits that the Tribunal engaged in "nit picking". Questioning the appellant or expressing concern about facts and claims that may be said to be of minor overall importance does not demonstrate a closed mind and does not amount to apprehended bias. 38 This ground of appeal does not succeed.
Case: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 583
Outcome: cited
The appellant contends that Smith FM erred in this finding and that the appellant's manner could have been ascertained by his Honour examining the transcript and listening to the tapes. The appellant points to several authorities that caution against findings made by reference to demeanour alone: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 583 per Kirby J at [88]; WAEJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 188 ; (2003) 76 ALD 597 at [17] [18] referring to SAAK v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 367 ; (2002) 121 FCR 185 at [21] [31].
Case: SZCOS v Minister for Immigration &amp; Anor [2007] FMCA 1471
Outcome: considered
The appellant's protection visa application was refused by a delegate of the Minister ('the delegate's decision'). The Tribunal affirmed the delegate's decision in January 2004 ('the first Tribunal hearing'). The first Tribunal decision was quashed by order of the Federal Magistrates Court in March 2006 and the matter was remitted to the Tribunal for re-hearing ('the second Tribunal hearing'). The Tribunal again affirmed the delegate's decision ('the Tribunal decision'). Federal Magistrate Smith dismissed an application for review of the Tribunal decision ( SZCOS v Minister for Immigration &amp; Anor [2007] FMCA 1471). The appellant appeals from Smith FM's decision. 3 In its reasons the Tribunal set out the appellant's claims regarding his alleged persecution in Malaysia. Those claims related to the appellant's support of the opposition party in Malaysia, the National Justice Party ('the NJP'). The appellant claimed that he had donated money to the NJP and demonstrated at the trial of Mr Anwar Ibrahim in 2001. As a consequence of those activities the appellant alleged that he had been attacked and detained by the police overnight and subsequently dismissed from his job in a Malaysian hotel. In 2002 the appellant left Malaysia and visited Australia. The appellant claimed that upon returning to Malaysia he was again detained by police, for a period of two months. The appellant contended that if he returned to Malaysia the police would continue to harass him and he would again be detained. 4 The appellant also asserted discrimination because of his religious beliefs and race, as a Christian of Malaysian ethnicity. Specifically the appellant pointed to the fact that he had experienced some discrimination in relation to housing, education and employment opportunities in Malaysia. The appellant contended that if he returned to Malaysia he would be persecuted as the Malaysian police ' are Muslims, anti-Christian, anti-minority and are fired up by Islamic fundamentalism... '.
Case: SZDTZ v Minister for Immigration &amp; Citizenship [2007] FCA 1824
Outcome: cited
It follows, the appellant contends, that the Tribunal based its decision on inadequate evidence and a finding based on inadequate evidence points to a misconstruction by the Tribunal of the test to be applied ( SZDTZ v Minister for Immigration &amp; Citizenship [2007] FCA 1824 at [32] per Greenwood J).
Case: WAEJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 188 ; (2003) 76 ALD 597
Outcome: cited
The appellant contends that Smith FM erred in this finding and that the appellant's manner could have been ascertained by his Honour examining the transcript and listening to the tapes. The appellant points to several authorities that caution against findings made by reference to demeanour alone: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 583 per Kirby J at [88]; WAEJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 188 ; (2003) 76 ALD 597 at [17] [18] referring to SAAK v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 367 ; (2002) 121 FCR 185 at [21] [31].
Case: W148/00A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703
Outcome: cited
The Tribunal was entitled to have regard to and base findings on the appellant's demeanour while giving evidence ( Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [34] ; W148/00A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 679 ; (2001) 185 ALR 703 at [64] ). However, in assessing the appellant's credibility, the Tribunal's findings were not made on demeanour alone. The Tribunal assessed the appellant's claims and made findings on credibility that it explained; based on its observation of the appellant, the way he presented his claims, the lack of consistency that it discerned in the claims made and what it found to be implausible. Those were findings of fact for the Tribunal.
Case: Yakubu v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 57
Outcome: cited
An integral part of the process of determining whether there is a real chance of persecution is the formation of conclusions on past events ( Guo at 575). The Tribunal is not required to determine the veracity of past events as a mere possibility. Rather, the Tribunal is required to assess the material before it and to reach a conclusion on the occurrence of those events to see if they provide a basis, a foundation, for a fear of persecution. Where the Tribunal expresses no doubt as to its findings of fact, where the Tribunal simply does not accept that certain events took place, the Tribunal is not obliged to consider the chance of the fact being true or the event having occurred ( Rajalingam ; Yakubu v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 57 at [50] ).
Case: Assad v Minister for Immigration and Citizenship [2008] FCA 1039
Outcome: applied
doubt as to whether this Court's jurisdiction has been properly invoked need not presently be resolved because the power to transfer a proceeding exists even where a question arises as to jurisdiction: cf Assad v Minister for Immigration and Citizenship [2008] FCA 1039. Tamberlin J there concluded: [21] I note that during argument as to whether the Court ought to transfer the matter to the Federal Magistrates Court, a question arose as to whether this Court has power to remit a "proceeding" to the Federal Magistrates Court where this Court does not have jurisdiction due to the absence of a federal "matter". In my view, the expression "proceeding" in s 32AB of the Federal Court of Australia Act 1976 (Cth) is distinct from the expression "matter" (as used in s 39B(1) of the Judiciary Act 1903 (Cth)) and is sufficiently wide to encompass the present dispute between the parties. I therefore consider that the Court has power to, and should, transfer the proceeding notwithstanding any doubt which may exist as to its jurisdiction to hear and determine the application. Having considered the factors set forth in s 32AB(6), O 82 r 7, and the submissions made both in writing and orally, it is considered that the present proceeding should be transferred to the Federal Magistrates Court. What further orders or directions as that Court may hereafter make is a matter for that Court to determine. No submission was advanced that a referral of a proceeding pursuant to s 32AB to the Federal Magistrates Court can in any way constrain the manner in which that Court thereafter itself deals with the proceeding.
Case: Beetham v Cortra Pty Ltd [2003] FCA 150
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.
Case: Melville v Macquarie University [2006] FCA 1761
Outcome: cited
power conferred by s 32AB has been exercised on a number of occasions and in diverse situations. In Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 , McKerracher J transferred a proceeding alleging a contravention of s 52 of the Trade Practices Act 1974 (Cth). His Honour considered that the proceeding involved a claim for a moderate amount and that it was likely that it could be dealt with more expeditiously and less formally in the Federal Magistrates Court. See also Kurniadi v Loh [2002] FCA 1021 , 193 ALR 253. A further instance is provided by Ozluk v Australian Turkish &amp; Kurdish Community Services Co-Operative Ltd [2008] FCA 352 where Graham J transferred an application brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). See also Beetham v Cortra Pty Ltd [2003] FCA 150. In Melville v Macquarie University [2006] FCA 1761 Madgwick J transferred an application brought under the Workplace Relations Act 1996 (Cth) for unlawful termination of employment. See also Sheikholeslami v University of New South Wales [2006] FCA 712 ; Rixon v Business Parcell Express Pty Ltd [2006] FCA 969. Applications arising under the Migration Act 1958 (Cth) have also been the subject of orders made pursuant to s 32AB: Nadu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 571 ; Hong Bo Su v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1355.