mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997)
Outcome: cited
weight to be given to the evidence before it is a matter for the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510. Gummow and Hayne JJ there observed: [197] ... In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. Similarly, in Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another ... " A finding on credibility " it has been said, " is the function of the primary decision-maker par excellence ": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , [2000] HCA 1 ; 168 ALR 407 at 423 per McHugh J. Reference may also be made to SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J.
Case: Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370
Outcome: cited
denial of procedural fairness may arise where the Tribunal does not alert an applicant to the prospect that documents may be found to have been fabricated: eg., Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370. In applying this decision, a Full Court has concluded that there had been a denial of procedural fairness in circumstances where a claimant had not been given an opportunity to address a question as to whether documents were genuine: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 , 131 FCR 511. Lee, Hill and Carr JJ there observed: [53] In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence. [54] Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it. [55] Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary. A general indication to the claimant by the Tribunal that it was having difficulties accepting the claimant as a credible witness, it was there said, was not sufficient to afford the claimant an opportunity to address the genuineness of the documents in issue.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407
Outcome: cited
weight to be given to the evidence before it is a matter for the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510. Gummow and Hayne JJ there observed: [197] ... In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. Similarly, in Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another ... " A finding on credibility " it has been said, " is the function of the primary decision-maker par excellence ": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , [2000] HCA 1 ; 168 ALR 407 at 423 per McHugh J. Reference may also be made to SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 , 206 CLR 57
Outcome: cited
the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require " a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure ": Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31] , [2001] HCA 22 ; 206 CLR 57 at 69 per Gleeson CJ and Hayne J. In the present proceeding, and as explained by the Tribunal, there were indications on the face of the documents themselves to question their authenticity, and the now Appellant was put on notice by the Tribunal as to its concerns and given an opportunity to address those concerns. It was clearly open in such circumstances for the Tribunal to make the findings that it did. The now Appellant could have been left in no uncertainty as to the basis of the Tribunal's concerns about the genuineness of the documents he sought to rely upon and in no uncertainty as to the concerns being expressed about his credibility. There was no " duty " imposed on the Tribunal to make further unspecified enquiries in Bangladesh.
Case: SZJMH v Minister for Immigration and Citizenship [2008] FCA 270
Outcome: cited
weight to be given to the evidence before it is a matter for the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510. Gummow and Hayne JJ there observed: [197] ... In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. Similarly, in Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another ... " A finding on credibility " it has been said, " is the function of the primary decision-maker par excellence ": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , [2000] HCA 1 ; 168 ALR 407 at 423 per McHugh J. Reference may also be made to SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J.
Case: SZKRR v Minister for Immigration and Citizenship [2008] FCA 145
Outcome: cited
weight to be given to the evidence before it is a matter for the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510. Gummow and Hayne JJ there observed: [197] ... In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. Similarly, in Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another ... " A finding on credibility " it has been said, " is the function of the primary decision-maker par excellence ": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , [2000] HCA 1 ; 168 ALR 407 at 423 per McHugh J. Reference may also be made to SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J.
Case: SZMUF v Minister for Immigration and Citizenship [2008] FMCA 1731
Outcome: affirmed
application was then filed with the Federal Magistrates Court on 25 September 2008. That Court dismissed the application on 9 December 2008: SZMUF v Minister for Immigration and Citizenship [2008] FMCA 1731. The Appellant now appeals to this Court. He appeared before the Court this morning unrepresented, although he did have the assistance of an interpreter. His Notice of Appeal was filed on 23 December 2008 and his Grounds of Appeal assert three alleged errors committed by the Refugee Review Tribunal, namely: (i) a failure " to exercise its duty under the Migration Act not to put any weight to the documents which I submitted before the Tribunal to support my claim "; (ii) a contention that the Tribunal " underestimated my inability of politics and my involvement with the BNP ... "; and (iii) a failure " to realise the genuine fear which I would face in my home country if the current regime of law and order in Bangladesh would collapse and/or the old regime under which I claimed persecution and political violence rife was reinstated ... ". Written submissions filed by the Appellant with this Court on 18 February 2009 have substantially repeated these arguments.
Case: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 , 131 FCR 511
Outcome: cited
denial of procedural fairness may arise where the Tribunal does not alert an applicant to the prospect that documents may be found to have been fabricated: eg., Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370. In applying this decision, a Full Court has concluded that there had been a denial of procedural fairness in circumstances where a claimant had not been given an opportunity to address a question as to whether documents were genuine: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 , 131 FCR 511. Lee, Hill and Carr JJ there observed: [53] In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence. [54] Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it. [55] Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary. A general indication to the claimant by the Tribunal that it was having difficulties accepting the claimant as a credible witness, it was there said, was not sufficient to afford the claimant an opportunity to address the genuineness of the documents in issue.
Case: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
Outcome: cited
assessment as to credibility may in turn lead to adverse conclusions being made as to the genuineness of documents: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [34] per French J (as His Honour then was).
Case: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 , 80 ALD 568
Outcome: cited
of the findings made by the Tribunal in the present proceeding was a finding of fact open to it. The findings as made by the Tribunal were based upon probative material and the reasons it advanced in support of its conclusions do not expose any departure from the duty of the Tribunal to act " judicially " and in accordance with law: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [19] to [24], [2004] FCAFC 74 ; 80 ALD 568 at 573 to 574 per Lee and Moore JJ; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 per Gordon J. Nor did the Tribunal err in the manner in which it went about making its findings.
Case: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: cited
In relation to the first question it is settled law that where documents are required to be produced under compulsion of a court order, an implied undertaking arises that the party who secures access will not make the contents of the documents public, communicate them to any stranger to the litigation, or use them for any purposes other than those related to the litigation in the course and for the purposes of which they were disclosed. Such an undertaking, however, must give way to any inconsistent statutory provision and to orders of a court in other proceedings for discovery and inspection: see Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 32-33 (per Mason CJ). 8 In this case I have made orders for discovery, but the relevance of an implied undertaking arising out of other proceedings was not raised or considered in the making of those orders. I do not regard the discovery orders granted to date as having the effect of automatically overriding any implied undertaking given by the Visy parties in relation to the documents now sought to be inspected. Accordingly, I reject this basis of Jarra Creek's application. 9 The second and more substantial question before me is whether I ought now to grant discovery and inspection of the documents in respect of which the implied undertaking applies, leaving aside for the moment the documents in respect of which the ACCC objects to production at this stage.
Case: Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269 ; (1991) 29 FCR 576
Outcome: considered
In Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269 ; (1991) 29 FCR 576 at 579, Burchett J held that the requirement of "special circumstances" when considering an application for release from an implied undertaking meant that the applicant for release must show "some circumstance which takes the matter out of the ordinary course", and that the Court should consider whether the exercise of its discretion would be "in the interests of justice". His Honour also accepted that one relevant circumstance was whether a release from the undertaking could occasion injustice to the person who was required to give discovery.
Case: Liberty Funding Pty Limited v Phoenix Capital Ltd (2005) 218 ALR 283
Outcome: considered
These factors were considered and applied by the Full Court in Liberty Funding Pty Limited v Phoenix Capital Ltd (2005) 218 ALR 283 at 289-290, and were regarded as a helpful guide when making a determination as to whether a release from an implied undertaking should be granted by the Court.
Case: Lombe v Pollak [2004] FCA 593
Outcome: considered
The reasoning in Springfield 38 FCR 217 was also applied by Jacobson J in Lombe v Pollak [2004] FCA 593 at [19] , where his Honour referred in particular to the question of whether any prejudice may be suffered by the owner of the document.
Case: Australian Federal Police Commissioner v Propend Finance Pty Ltd (1997) 188 CLR
Outcome: referred to
The privilege asserted is legal advice privilege, which protects confidential communications between a client and his or her legal adviser. The protection of communications passing between third parties and the client's legal adviser does not arise in the present case: all the documents in question are said to be communications created by the OWS or Mr Ronson as State Manager of the OWS (the client) and communicated to the Legal and Advice Branch (the legal adviser). The relevant communications in respect of which privilege is claimed are all contained in documents. Therefore, in determining whether the communications enjoy the privilege claimed, the relevant test to be applied in each case is whether the document was brought into existence for the dominant purpose of obtaining or giving legal advice: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49. Although no submissions were put directly on the point, it appears from the applicant's list of documents that several of the documents may be copies of documents which, in their original form, are not the subject of privilege. Whether these copy documents enjoy legal professional privilege will depend upon whether the copy was brought into existence for the dominant purpose of obtaining legal advice: Australian Federal Police Commissioner v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501.
Case: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: followed
The claims of privilege are to be determined by reference to the common law principles. Section 118 of the Evidence Act 1995 (Cth), which creates a statutory legal advice privilege, applies only to the adduction of evidence. Where, as in the present case, privilege is claimed at the pre-hearing stage of discovery, the claim is to be determined by reference to the common law: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at 59 [16] - [17] per Gleeson CJ, Gaudron and Gummow JJ, 73-4 [64] per McHugh J and 100-1 [149] per Callinan J. See also Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at 571 [16] per Gleeson CJ and Gummow J, 606 [135] per Gaudron J and 629 [199] per McHugh and Callinan JJ. The Federal Court Rules , in particular O 33 r 11, do not extend the operation of s 118 beyond 'circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence': Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379 at 382-3 [17] per Branson J; see also at 384-5 [33] per Allsop J. 12 The privilege asserted is legal advice privilege, which protects confidential communications between a client and his or her legal adviser. The protection of communications passing between third parties and the client's legal adviser does not arise in the present case: all the documents in question are said to be communications created by the OWS or Mr Ronson as State Manager of the OWS (the client) and communicated to the Legal and Advice Branch (the legal adviser). The relevant communications in respect of which privilege is claimed are all contained in documents. Therefore, in determining whether the communications enjoy the privilege claimed, the relevant test to be applied in each case is whether the document was brought into existence for the dominant purpose of obtaining or giving legal advice: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49. Although no submissions were put directly on the point, it appears from the applicant's list of documents that several of the documents may be copies of documents which, in their original form, are not the subject of privilege. Whether these copy documents enjoy legal professional privilege will depend upon whether the copy was brought into existence for the dominant purpose of obtaining legal advice: Australian Federal Police Commissioner v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501.
Case: Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553
Outcome: referred to
The claims of privilege are to be determined by reference to the common law principles. Section 118 of the Evidence Act 1995 (Cth), which creates a statutory legal advice privilege, applies only to the adduction of evidence. Where, as in the present case, privilege is claimed at the pre-hearing stage of discovery, the claim is to be determined by reference to the common law: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at 59 [16] - [17] per Gleeson CJ, Gaudron and Gummow JJ, 73-4 [64] per McHugh J and 100-1 [149] per Callinan J. See also Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at 571 [16] per Gleeson CJ and Gummow J, 606 [135] per Gaudron J and 629 [199] per McHugh and Callinan JJ. The Federal Court Rules , in particular O 33 r 11, do not extend the operation of s 118 beyond 'circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence': Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379 at 382-3 [17] per Branson J; see also at 384-5 [33] per Allsop J.