mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 , 141 FCR 370
Outcome: considered
In all cases a notice of appeal should be construed with a view to determining whether it does as a matter of substance set forth grounds which can be properly pursued on appeal. If it does, it may thereafter simply be a question as to whether an order should be made dispensing with compliance with any requirement of the Federal Court Rules pursuant to O 1 r 8. Although compliance with those Rules should not be lightly put aside, compliance should not become an " instrument of oppression ". Equally, however, the fact that a party may be unrepresented and may not comply with Rules of Court cannot be the occasion for this Court exercising a jurisdiction it simply does not possess. Order 1 r 8 confers a " very wide discretion on the Court ": cf Lazar v Taito (Aust) Pty Ltd [1985] FCA 35 ; (1985) 5 FCR 395 at 414 per Neaves J; Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 at [53] , [2004] FCA 1664 ; 141 FCR 370 at 382 3. And the power conferred by O 1 r 8 " may be exercised ... where there is no apparent injustice and the alleged error can only be one of procedure ": [1985] FCA 35 ; (1985) 5 FCR 395 at 403 4 per McGregor J. It has also been said that " [t]here is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require ": Rishmawi v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 611 at [7] . Kiefel J there concluded that a letter written by the applicant in intended commencement of an application for judicial review should be taken as her application under the Rules . See also: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [43] [55], [2002] FCA 367 ; 121 FCR 185 at 193 5 per North, Goldberg and Hely JJ.
Case: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: considered
The conclusions reached by the Tribunal were all based upon findings of fact open to be made by the Tribunal. The Ground is but an invitation for this Court to conclude that the Tribunal would have reached a different factual conclusion had it " fully " considered the material before it. But the task of making findings of fact is a task entrusted by the legislature to the Tribunal. The " weight " to be given to such evidence as is before the Tribunal is a matter entrusted to the Tribunal alone: cf Abebe v Commonwealth [1999] HCA 14 at [197] , [2004] HCA 32 ; 197 CLR 510 at 580 per Kirby J; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559. The Tribunal (in any event) did " fully " consider the claim. The learned Federal Magistrate concluded that the Tribunal had not committed any jurisdictional error in reaching the conclusion that it did. And no error is exposed in that decision of the Federal Magistrate.
Case: Lazar v Taito (Aust) Pty Ltd [1985] FCA 35 ; (1985) 5 FCR 395
Outcome: considered
In all cases a notice of appeal should be construed with a view to determining whether it does as a matter of substance set forth grounds which can be properly pursued on appeal. If it does, it may thereafter simply be a question as to whether an order should be made dispensing with compliance with any requirement of the Federal Court Rules pursuant to O 1 r 8. Although compliance with those Rules should not be lightly put aside, compliance should not become an " instrument of oppression ". Equally, however, the fact that a party may be unrepresented and may not comply with Rules of Court cannot be the occasion for this Court exercising a jurisdiction it simply does not possess. Order 1 r 8 confers a " very wide discretion on the Court ": cf Lazar v Taito (Aust) Pty Ltd [1985] FCA 35 ; (1985) 5 FCR 395 at 414 per Neaves J; Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 at [53] , [2004] FCA 1664 ; 141 FCR 370 at 382 3. And the power conferred by O 1 r 8 " may be exercised ... where there is no apparent injustice and the alleged error can only be one of procedure ": [1985] FCA 35 ; (1985) 5 FCR 395 at 403 4 per McGregor J. It has also been said that " [t]here is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require ": Rishmawi v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 611 at [7] . Kiefel J there concluded that a letter written by the applicant in intended commencement of an application for judicial review should be taken as her application under the Rules . See also: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [43] [55], [2002] FCA 367 ; 121 FCR 185 at 193 5 per North, Goldberg and Hely JJ.
Case: Nadezhkin v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 128
Outcome: considered
A course of proceeding to hear an appeal in the absence of an appellant is a course which at least ensures that the substance of the appeal has been addressed, albeit without the assistance of the appellant. It is a course which has previously been invoked in the hearing of migration appeals, eg Nadezhkin v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 128 ; SZASL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1697 ; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [2] , [2004] FCAFC 123 ; 206 ALR 471 at 472 per Finn and Stone JJ.
Case: Rishmawi v Minister for Immigration &amp; Multicultural Affairs [1999] FCA
Outcome: followed
In all cases a notice of appeal should be construed with a view to determining whether it does as a matter of substance set forth grounds which can be properly pursued on appeal. If it does, it may thereafter simply be a question as to whether an order should be made dispensing with compliance with any requirement of the Federal Court Rules pursuant to O 1 r 8. Although compliance with those Rules should not be lightly put aside, compliance should not become an " instrument of oppression ". Equally, however, the fact that a party may be unrepresented and may not comply with Rules of Court cannot be the occasion for this Court exercising a jurisdiction it simply does not possess. Order 1 r 8 confers a " very wide discretion on the Court ": cf Lazar v Taito (Aust) Pty Ltd [1985] FCA 35 ; (1985) 5 FCR 395 at 414 per Neaves J; Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 at [53] , [2004] FCA 1664 ; 141 FCR 370 at 382 3. And the power conferred by O 1 r 8 " may be exercised ... where there is no apparent injustice and the alleged error can only be one of procedure ": [1985] FCA 35 ; (1985) 5 FCR 395 at 403 4 per McGregor J. It has also been said that " [t]here is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require ": Rishmawi v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 611 at [7] . Kiefel J there concluded that a letter written by the applicant in intended commencement of an application for judicial review should be taken as her application under the Rules . See also: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [43] [55], [2002] FCA 367 ; 121 FCR 185 at 193 5 per North, Goldberg and Hely JJ.
Case: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 , 121 FCR 185
Outcome: considered
In all cases a notice of appeal should be construed with a view to determining whether it does as a matter of substance set forth grounds which can be properly pursued on appeal. If it does, it may thereafter simply be a question as to whether an order should be made dispensing with compliance with any requirement of the Federal Court Rules pursuant to O 1 r 8. Although compliance with those Rules should not be lightly put aside, compliance should not become an " instrument of oppression ". Equally, however, the fact that a party may be unrepresented and may not comply with Rules of Court cannot be the occasion for this Court exercising a jurisdiction it simply does not possess. Order 1 r 8 confers a " very wide discretion on the Court ": cf Lazar v Taito (Aust) Pty Ltd [1985] FCA 35 ; (1985) 5 FCR 395 at 414 per Neaves J; Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 at [53] , [2004] FCA 1664 ; 141 FCR 370 at 382 3. And the power conferred by O 1 r 8 " may be exercised ... where there is no apparent injustice and the alleged error can only be one of procedure ": [1985] FCA 35 ; (1985) 5 FCR 395 at 403 4 per McGregor J. It has also been said that " [t]here is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require ": Rishmawi v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 611 at [7] . Kiefel J there concluded that a letter written by the applicant in intended commencement of an application for judicial review should be taken as her application under the Rules . See also: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [43] [55], [2002] FCA 367 ; 121 FCR 185 at 193 5 per North, Goldberg and Hely JJ.
Case: SZASL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1697
Outcome: considered
A course of proceeding to hear an appeal in the absence of an appellant is a course which at least ensures that the substance of the appeal has been addressed, albeit without the assistance of the appellant. It is a course which has previously been invoked in the hearing of migration appeals, eg Nadezhkin v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 128 ; SZASL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1697 ; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [2] , [2004] FCAFC 123 ; 206 ALR 471 at 472 per Finn and Stone JJ.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: followed
Although it is correct to observe, as did the Tribunal, that there may be no onus upon a claimant, it is equally clear that a decision-maker need not make out a claimant's case for him. "[I] t is for the applicant for a protection visa to establish the claims that are made ": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40] , [2006] HCA 63 ; 228 CLR 152 at 164 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; SZIFB v Minister for Immigration &amp; Citizenship [2007] FCA 1727 at [10] per Jacobson J.
Case: SZCQR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 724
Outcome: followed
Moreover, it is a Ground without substance. Section 426A(1) provides as follows: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The authority of the Tribunal, to proceed to make a decision, conferred by s 426A(1) is dependent upon those two jurisdictional facts being satisfied: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35] , [2007] HCA 35 ; 237 ALR 64 at 73 4 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Section 425A(4) provides that where a person is invited to appear before the Tribunal a notice " must contain a statement of the effect of section 426A ". Of this provision, in SZCQR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 724 Moore J observed: [27] ... Plainly, the requirement in s 425A(4) is to ensure that the notice alerts an applicant to the consequences of not appearing in the face of an invitation to appear, the material consequence being that the Tribunal can make a decision without taking any further action which would result in the applicant appearing before the Tribunal. In my opinion the notice conveys this. See also: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [13] [17], 100 ALD 1 at 4 5 per Tamberlin, Finn and Besanko JJ.
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , 237 ALR 64
Outcome: followed
Moreover, it is a Ground without substance. Section 426A(1) provides as follows: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The authority of the Tribunal, to proceed to make a decision, conferred by s 426A(1) is dependent upon those two jurisdictional facts being satisfied: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35] , [2007] HCA 35 ; 237 ALR 64 at 73 4 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Section 425A(4) provides that where a person is invited to appear before the Tribunal a notice " must contain a statement of the effect of section 426A ". Of this provision, in SZCQR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 724 Moore J observed: [27] ... Plainly, the requirement in s 425A(4) is to ensure that the notice alerts an applicant to the consequences of not appearing in the face of an invitation to appear, the material consequence being that the Tribunal can make a decision without taking any further action which would result in the applicant appearing before the Tribunal. In my opinion the notice conveys this. See also: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [13] [17], 100 ALD 1 at 4 5 per Tamberlin, Finn and Besanko JJ.
Case: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 , 100 ALD 1
Outcome: followed
Moreover, it is a Ground without substance. Section 426A(1) provides as follows: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The authority of the Tribunal, to proceed to make a decision, conferred by s 426A(1) is dependent upon those two jurisdictional facts being satisfied: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35] , [2007] HCA 35 ; 237 ALR 64 at 73 4 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Section 425A(4) provides that where a person is invited to appear before the Tribunal a notice " must contain a statement of the effect of section 426A ". Of this provision, in SZCQR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 724 Moore J observed: [27] ... Plainly, the requirement in s 425A(4) is to ensure that the notice alerts an applicant to the consequences of not appearing in the face of an invitation to appear, the material consequence being that the Tribunal can make a decision without taking any further action which would result in the applicant appearing before the Tribunal. In my opinion the notice conveys this. See also: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [13] [17], 100 ALD 1 at 4 5 per Tamberlin, Finn and Besanko JJ.
Case: SZIFB v Minister for Immigration &amp; Citizenship [2007] FCA 1727
Outcome: followed
Although it is correct to observe, as did the Tribunal, that there may be no onus upon a claimant, it is equally clear that a decision-maker need not make out a claimant's case for him. "[I] t is for the applicant for a protection visa to establish the claims that are made ": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40] , [2006] HCA 63 ; 228 CLR 152 at 164 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; SZIFB v Minister for Immigration &amp; Citizenship [2007] FCA 1727 at [10] per Jacobson J.
Case: SZITO v Minister for Immigration &amp; Citizenship [2008] FCA 758
Outcome: considered
No jurisdiction is conferred upon this Court to conduct a review of the Tribunal's decision upon the basis invited by the Notice of Appeal . The relevant jurisdiction of this Court is its appellate jurisdiction to entertain an appeal from a decision of the Federal Magistrates Court: Federal Court of Australia Act , s 24(1)(d). See also: SZLZM v Minister for Immigration &amp; Citizenship [2008] FCA 1263 ; SZITO v Minister for Immigration &amp; Citizenship [2008] FCA 758 at [4] [5], [32] per Greenwood J.
Case: SZLQW v Minister for Immigration [2008] FMCA 782
Outcome: cited
An application was thereafter made to the Federal Magistrates Court on 20 November 2007 for review by that Court of the Tribunal's decision. The Federal Magistrates Court dismissed the application: SZLQW v Minister for Immigration [2008] FMCA 782. The Appellant now appeals to this Court. 3 Today, when the matter was called on for hearing, there was no attendance by the Appellant. The Appellant, however, had been advised of the date and time of the hearing of this appeal by way of a letter from the National Appeals Registrar of this Court dated 22 July 2008. On behalf of the First Respondent, an application was then made for the appeal to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). Rather than dismissing the appeal, it was considered that the more prudent course was to proceed to hear the appeal in the absence of the Appellant. Such a course is permitted by O 52 r 38A(1)(d) of the Federal Court Rules . Rule 38A provides as follows: Absence of party (1) If a party is absent when an appeal is called on for hearing, the Court may: (a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or (b) adjourn the hearing; or (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If the Court proceeds with the hearing under paragraph (1) (d), the Court may: (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal.
Case: SZLZM v Minister for Immigration &amp; Citizenship [2008] FCA 1263
Outcome: considered
No jurisdiction is conferred upon this Court to conduct a review of the Tribunal's decision upon the basis invited by the Notice of Appeal . The relevant jurisdiction of this Court is its appellate jurisdiction to entertain an appeal from a decision of the Federal Magistrates Court: Federal Court of Australia Act , s 24(1)(d). See also: SZLZM v Minister for Immigration &amp; Citizenship [2008] FCA 1263 ; SZITO v Minister for Immigration &amp; Citizenship [2008] FCA 758 at [4] [5], [32] per Greenwood J.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 , 206 ALR 471
Outcome: considered
A course of proceeding to hear an appeal in the absence of an appellant is a course which at least ensures that the substance of the appeal has been addressed, albeit without the assistance of the appellant. It is a course which has previously been invoked in the hearing of migration appeals, eg Nadezhkin v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 128 ; SZASL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1697 ; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [2] , [2004] FCAFC 123 ; 206 ALR 471 at 472 per Finn and Stone JJ.
Case: Zegarac v Dellios [2007] FCAFC 58
Outcome: followed
Both Grounds , it should be observed at the outset, fail to expressly identify any error committed by the Federal Magistrate. By failing to identify any such error, the Appellant has not stated " the grounds relied upon in support of the appeal " as required by O 52 r 13(2)(b) of the Federal Court Rules . A failure to comply with that requirement, however, does not render an appeal incompetent: Zegarac v Dellios [2007] FCAFC 58 at [7] per North J (Weinberg and Jessup JJ agreeing).
Case: Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 ; [1969] 2 AC 147
Outcome: followed
Even though the text of s 9(1)(e) and of s 70(5)(d) are similar, this circumstance does not detract from the conclusion that the wrong test was applied by the Tribunal. The failure of the Tribunal to refer to the correct statutory provision demonstrates that the Tribunal asked itself the wrong question. Jurisdictional error therefore exists in its decision: see Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 ; [1969] 2 AC 147 at 171; Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179. Whether such error is by itself sufficient to warrant the setting aside of the Tribunal's decision is a matter within the Court's discretion.
Case: Arnott v Repatriation Commission [2001] FCA 262 ; (2001) 106 FCR 83
Outcome: referred to
In view of the above findings of error in the decision of the Tribunal, the Court is not of the opinion that it would be 'futile to remit the matter' : see Arnott v Repatriation Commission [2001] FCA 262 ; (2001) 106 FCR 83 at [36] . Rather the Court considers that there is a possibility that a different result would be reached on such remitter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540; and Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
The Court is not satisfied that if the Tribunal had addressed the correct questions, its decision would be the same, irrespective of the error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 384. The errors of the Tribunal include the reference to eligible service under s 9(1) when the correct test was contained in s 70(5) of the Act; the reference to 'war service' when the only service relevant was Mr Robertson's 'defence service'; the failure to refer to the correct provisions in s 70(5) of the Act; and the finding made in the absence of evidence of Mr Robertson's alcohol dependence. The Tribunal did not identify the correct issues which it was required to determine and accordingly fell into jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 347-348.