mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: cited
and finally, the appellant claims that the Tribunal applied the wrong test in determining whether grounds existed for the cancellation of his visa. The appellant submits that rather than form a positive state of satisfaction that there were no exceptional circumstances beyond the appellant's control which explained his non-compliance with condition 8202 as reg 2.43(2)(b)(ii) of the Regulations requires, the Tribunal referred to the discussion in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 ; (2005) 142 FCR 257 at [107] - [116] . That discussion is based on s 137L(1)(b) of the Act which is phrased in different terms to reg 2.43(2)(b)(ii). That section requires an appellant to satisfy the Tribunal that certain circumstances do exist. In contrast, reg 2.43(2)(b)(ii) requires the Tribunal to form a positive state of satisfaction that exceptional circumstances don't exist. The appellant submits that such application of the wrong test constitutes a jurisdictional error. The Minister submits that a Tribunal is not required to make the case for an applicant before it, it is for the applicant to make their submissions: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] . This is undoubtedly correct. However, the inquiry in question would not make the appellant's case for him. Rather, it would seek clarification of the grounds already provided to the delegate, in the circumstance where the delegate's record was wholly unsatisfactory. It is true that the appellant did not reply to the invitation of the Tribunal on these matters. However, the Act, specifically s 359C, envisages the circumstance that no reply is forthcoming and the Tribunal may still need to seek additional information before it should make its decision. This was such a circumstance.
Case: Snedden v Republic of Croatia (No 2) [2009] FCAFC 132
Outcome: referred to
the circumstances where the appeal has been upheld on grounds that were not before the Federal Magistrate, or at least not before the Federal Magistrate in the form now put, the usual rule that costs follow the event should not apply. This is because there was no fault on the part of the Federal Magistrate in making the decision he did. Rather, the Court considers that each party should pay their own costs of the appeal, similarly to the basis for the costs order in Snedden v Republic of Croatia (No 2) [2009] FCAFC 132. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 5 November 2009 Counsel for the Appellant: Mr Mitchell Solicitor for the Appellant: Mr Miller Counsel for the First Respondent: Mr Kennett Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 21 September 2009 Date of Judgment: 5 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1247.html
Case: SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14
Outcome: referred to
the appellant submits that the Tribunal, pursuant to SZJBA v Minister for Immigration and Citizenship and Another [2007] FCA 1592 ; (2007) 164 FCR 14 , was obliged to undertake reasonably open and regular administrative steps to permit or facilitate fulfilment of the ' real and meaningful nature of the invitation to comment ' (at [53]). The appellant submits that such obligation arises where the Tribunal is aware that the record of claims made by an applicant and received by the Tribunal is incomplete. It is submitted by the appellant that the Tribunal was aware of a ' conspicuous absence of any explanation ' of the medical records submitted by the appellant. Thirdly, the appellant submits that, following the submissions in ground one (namely that the Tribunal retains a discretion pursuant to s 359(1) and s 359C of the Act to obtain further information even if a reply to an invitation is not forthcoming), that exercise of discretion is guided by s 353 and s 357A(3) of the Act. Section 353 states: (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case. Section 357A(3) states: (3) In applying this Division, the Tribunal must act in a way that is fair and just.
Case: SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578
Outcome: referred to
detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] - [11] . The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it justly and practicably be cured? If not, where, in all the circumstances, do the interests of justice lie? Overall, the leave will be granted where it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Consideration
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168
Outcome: referred to
detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] - [11] . The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it justly and practicably be cured? If not, where, in all the circumstances, do the interests of justice lie? Overall, the leave will be granted where it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Consideration The Court notes the prejudice identified by the Minister relating to grounds one, three and four relied upon by the appellant and the assertion that the Minister might have chosen to lead evidence in the Federal Magistrates Court had it been on notice of the grounds as now raised. The Court also notes that the Minister, in supplementary submissions, noted that ground one had been partially raised before the Court below in similar terms to those now put. The Court notes that the Minister was afforded the opportunity to cross-examine the appellant and was also granted the opportunity to adjourn the proceedings in order that it be able to put on further evidence. Such offer was declined. An offer to allow the Minister to cross-examine the appellant on his affidavit in the Court below was also declined by the Minister. In the circumstances, the Court believes the Minister has been given adequate opportunity to rectify any prejudice identified, particularly as this Court is in just as good a position to take evidence to review a decision of the Tribunal as the Federal Magistrates Court. Even if such prejudice is not overcome, the Court considers that it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': VAAC at [26].
Case: Videto and Another v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167
Outcome: cited
Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318 ; (2007) 164 FCR 151 Kenny J at [63] observed: The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J ( Videto ); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ ( Luu v Renevier ); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 364 ; (1990) 21 ALD 139 at 143 per Pincus J ( Detsongjarus ); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ ( Yang ). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. In Videto and Another v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 , Toohey J at 178 said: In such a case [potential deportation] it may be that the material placed before the Minister or his delegate contained some obvious omission or obscurity that needs to be resolved before a decision is made.
Case: TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law was not merely a qualifying condition to ground an appeal under s 44 , " but also the subject matter of the appeal itself ... " (Emphasis added).
Case: Australian Telecommunications Corporation v Lamroglou (1990) 12 AAR 515
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added).
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added). 15 In other cases in which the Court has been confronted with this problem and in which it has determined that it might be possible to frame an appropriate question of law, it has done so itself: see, for example, Birdseye . The time may have come, given the clear statements by the Court about the need for properly framed questions of law, now made over many years, for the Court to strike out purported appeals which do not identify questions of law. I would, nonetheless, be prepared, reluctantly, to attempt to frame questions of law in the present case if I considered that the interests of justice so required. I have concluded that they do not because I do not consider that the Tribunal has made any of the errors attributed to it by Mr Masliczek. 16 Grounds 3.1, 3.2, 3.3 and 3.4 deal with the Mr Masliczek's claim insofar as it relies on a diagnosis of PTSD. As already noted the Tribunal found, as a matter of fact, that the traumatic events which Mr Masliczek claimed had given rise to PTSD, either had not occurred or had not occurred in the manner described by him and that they did not give rise to a response of the required intensity.
Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added).
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added).
Case: Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added).
Case: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added).
Case: Fenner v Repatriation Commission [2007] FCA 406
Outcome: cited
In Mines v Repatriation Commission [2004] FCA 1331 ; (2004) 86 ALD 62 Gray J said (at 74) that: "If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation." (Emphasis added) See also Fenner v Repatriation Commission [2007] FCA 406 at [63] ; Repatriation Commission v Hill [2008] FCA 50 at [104] - [106] .
Case: Repatriation Commission v Hill [2008] FCA 50
Outcome: cited
In Mines v Repatriation Commission [2004] FCA 1331 ; (2004) 86 ALD 62 Gray J said (at 74) that: "If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation." (Emphasis added) See also Fenner v Repatriation Commission [2007] FCA 406 at [63] ; Repatriation Commission v Hill [2008] FCA 50 at [104] - [106] .