mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340
Outcome: cited
First, in my view Mr Bickford correctly stated the process by which the Tribunal was required to reach its decision: namely to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. This approach is consistent with the approach required of the Tribunal in reaching other decisions under the Migration Act : cf, for example, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 and Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. The appellant does not bear an onus to satisfy the Tribunal that the fee should be waived (cf Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340 at 351) however it is clear that it is for the appellant to advance whatever evidence or argument she wishes to advance in support of her claim: cf Abebe 197 CLR at 576, cf re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] .
Case: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76
Outcome: cited
In my view these considerations are relevant to the decision of the Tribunal for the reasons explained by Jarrett FM in his Honour's decision. I have very little to add to the reasons of Jarrett FM in this regard, other than to note: &#8226; it is reasonable for the Tribunal to state in the application form to be completed by the appellant the material it requires and upon which it will base a decision (indeed failure to so indicate could itself constitute procedural unfairness: cf David Jonathon Walsh v Mike Garrett [1998] 473 FCA per Finn J). The documents specified in the application form were referable to considerations the Tribunal could relevantly take into account in making its decision, as explained by Jarrett FM &#8226; I do not accept the submission of Mr Boccabella that it does not follow that the failure to provide such bank statements can be a relevant consideration unless the decision-maker concludes that the appellant is attempting to mislead the decision-maker. As explained by Jarrett FM, the amount of money the appellant has had in her bank accounts both at and prior to the date of application for waiver is relevant to the decision whether payment of the fee would cause her financial hardship &#8226; I note the submission of the appellant that she had no credit card, and that a failure to provide a credit card statement could not lead to the conclusion that the payment of the fee would not cause her financial hardship, however at best any error of the Tribunal in relation to this issue is an error of fact which would not of itself constitute a jurisdictional error of the Tribunal in reaching its decision in these circumstances: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76.
Case: re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50
Outcome: cited
First, in my view Mr Bickford correctly stated the process by which the Tribunal was required to reach its decision: namely to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. This approach is consistent with the approach required of the Tribunal in reaching other decisions under the Migration Act : cf, for example, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 and Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. The appellant does not bear an onus to satisfy the Tribunal that the fee should be waived (cf Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340 at 351) however it is clear that it is for the appellant to advance whatever evidence or argument she wishes to advance in support of her claim: cf Abebe 197 CLR at 576, cf re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] .
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: applied
Second, the Draft Report has no impact on rights and is not a reviewable decision because it is neither final nor operative, nor is it substantive in character: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. The preparation of the Draft Report is not reviewable as 'conduct' engaged in for the purposes of making a decision in circumstances where it is superseded by a final and operative decision that is reviewable, that is, the Committee's Final Report: Minister for Immigration &amp; Multicultural Affairs v Ozmanian (1996) 71 FCR 1.
Case: Dimian v Health Insurance Commission [2004] FCA 1615
Outcome: applied
Third, at the time when the Draft Report was prepared, the Act contained no statutory requirement that it contain reasons. Subsection 106KD(1A), which provides that 'a draft report must set out the reasons for the preliminary findings' did not come into force until 1 January 2003. It does not apply to the present case see Item 118(1) Schedule 1, Health Insurance Amended (Professional Services Review and Other Matters) Act 2002 (Cth). Section 25D of the Acts Interpretation Act 1901 (Cth), which operates only where there is such a statutory requirement, did not apply to the Draft Report. Dr Mathews' contention to the contrary was rejected in Dimian v Health Insurance Commission [2004] FCA 1615 at [78] [80] per Jacobson J. I agree with his Honour's view. 16 In any event, this ground cannot be sustained because the Draft Report does contain reasons see ground 4 below. 17 Ground 4 is as follows: ' [The Committee] failed to observe procedures that it was required to observe by law (ADJR Act, s 5(1)(b) or 5 (1)(e)), in the making of its Final Report in that it failed to make or set out: (a) Findings or sufficient findings on material questions of fact; and it (b) Failed to refer to the evidence upon which those findings were based (the Act, s 106L and Acts Interpretation Act 1901 , s 25D) and/or it (c) Failed to expose its reasons or sufficient reasons for making its ultimate conclusions.'
Case: Lee v Maskell-Knight [2004] FCAFC 2 ; (2003) 207 ALR 362
Outcome: referred to
The majority in Yung (Burchett and Hill JJ) did not comment on the Committee's obligations under s 106L, but in Lee v Maskell-Knight [2004] FCAFC 2 ; (2003) 207 ALR 362 at [43] , Hill and Marshall JJ quoted Beaumont J's remarks with apparent approval. Heerey J also commented on s 106L in Mercado v Holmes [2000] FCA 620 , overturned on appeal at [2000] FCA 1848 ; (2000) 111 FCR 160, but without any disapproval of this comment: '... the task of the Committee is not to make a finding as to the occurrence or otherwise of a specific event but, pursuant to s 106L, to express an opinion in generalised and conclusionary terms by reference to a subjective and value-laden criterion, namely what members think the general body of general practitioners would think about the conduct in question: s 82(1)(a).'
Case: Minister for Health v Thomson (1985) 8 FCR 213
Outcome: cited
For the respondents it is submitted that 'inappropriate practice' is defined in s 82(1) of the Act relevantly as 'conduct ... such that a Committee could reasonably conclude that ... the conduct would be unacceptable to the general body of general practitioners'. The Committee addressed itself to the correct test [36] of the Final Report. It 'applied its combined professional expertise' [37] of the Final Report. As an expert body, it was entitled and expected to do so: Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at [107] ; Minister for Health v Thomson (1985) 8 FCR 213 at 217 and 224.
Case: Minister for Immigration &amp; Multicultural Affairs v Ozmanian (1996) 71 FCR 1
Outcome: applied
Second, the Draft Report has no impact on rights and is not a reviewable decision because it is neither final nor operative, nor is it substantive in character: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. The preparation of the Draft Report is not reviewable as 'conduct' engaged in for the purposes of making a decision in circumstances where it is superseded by a final and operative decision that is reviewable, that is, the Committee's Final Report: Minister for Immigration &amp; Multicultural Affairs v Ozmanian (1996) 71 FCR 1.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: applied
The question which arises is whether this error invalidates the Committee's finding at [2] of its Final Report, namely, that the conduct of Dr Mathews in connection with rendering MBS Item 23, 24 and 193 services that were the subject of Adjudicative Referral 223 was, in the Committee's opinion, unacceptable to the general body of general practitioners and constituted inappropriate practice as defined in s 82 of the Act. In my view it does and for the following reasons: 1. The importance of complying with the sampling methodology in the Sampling Determination is borne out by all the provisions of s 106K of the Act, but in particular the deeming operation of subs 106K(2) and the fact that the Committee is, by subs 106K(4), prohibited from using a sampling methodology that is not specified in a determination made under subs 106K(3), unless it is ordered by a statistician accredited by the Statistical Society of Australia that the sampling methodology is statistically valid. 2. The opening words of s 8 of the Sampling Determination make it clear that its requirements are mandatory: 'In making a finding based on statistical sampling, the Committee must ...'. 3. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, the majority rejected (at 389 391, [92] [93]) the traditional distinction between 'mandatory' and 'directory' requirements, saying that: '[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'. In determining the purpose of the legislation, regard has to be had to 'the language of the relevant provision and the scope and object of the whole statute'. 4. Nevertheless, having regard to the mandatory terms of s 8 of the Sampling Determination and its importance in the process of statistical sampling upon which the Committee's finding is ultimately made, I am of the view that it is a purpose of the Sampling Determination that a finding made in reliance on an act done in breach of s 8 of the Sampling Determination is an invalid finding: See SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 per McHugh J at [72] [73]; per Hayne J at [205].
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: applied
The question which arises is whether this error invalidates the Committee's finding at [2] of its Final Report, namely, that the conduct of Dr Mathews in connection with rendering MBS Item 23, 24 and 193 services that were the subject of Adjudicative Referral 223 was, in the Committee's opinion, unacceptable to the general body of general practitioners and constituted inappropriate practice as defined in s 82 of the Act. In my view it does and for the following reasons: 1. The importance of complying with the sampling methodology in the Sampling Determination is borne out by all the provisions of s 106K of the Act, but in particular the deeming operation of subs 106K(2) and the fact that the Committee is, by subs 106K(4), prohibited from using a sampling methodology that is not specified in a determination made under subs 106K(3), unless it is ordered by a statistician accredited by the Statistical Society of Australia that the sampling methodology is statistically valid. 2. The opening words of s 8 of the Sampling Determination make it clear that its requirements are mandatory: 'In making a finding based on statistical sampling, the Committee must ...'. 3. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, the majority rejected (at 389 391, [92] [93]) the traditional distinction between 'mandatory' and 'directory' requirements, saying that: '[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'. In determining the purpose of the legislation, regard has to be had to 'the language of the relevant provision and the scope and object of the whole statute'. 4. Nevertheless, having regard to the mandatory terms of s 8 of the Sampling Determination and its importance in the process of statistical sampling upon which the Committee's finding is ultimately made, I am of the view that it is a purpose of the Sampling Determination that a finding made in reliance on an act done in breach of s 8 of the Sampling Determination is an invalid finding: See SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 per McHugh J at [72] [73]; per Hayne J at [205].
Case: Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152
Outcome: cited
For the respondents it is submitted that 'inappropriate practice' is defined in s 82(1) of the Act relevantly as 'conduct ... such that a Committee could reasonably conclude that ... the conduct would be unacceptable to the general body of general practitioners'. The Committee addressed itself to the correct test [36] of the Final Report. It 'applied its combined professional expertise' [37] of the Final Report. As an expert body, it was entitled and expected to do so: Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at [107] ; Minister for Health v Thomson (1985) 8 FCR 213 at 217 and 224.
Case: Tisdall v Health Insurance Commission [2002] FCA 97
Outcome: applied
I agree with the submissions of counsel for the respondents that the Committee treated the deficiencies which it found in Dr Mathews' records as one only of the relevant factors which it took into account when making findings of inappropriate practice in respect of each of the three MBS item services. It did indeed treat adequate record keeping as a component of the clinical input necessary for proper treatment of the patient and that approach is consistent with the approach adopted by this Court in Tisdall v Health Insurance Commission [2002] FCA 97 at [82] where Tamberlin J said: 'It is evident from the language of the Final Report that the Committee did not treat the failure to keep records, for example, in itself sufficient justification to arrive at its findings. Rather, the Committee took this into account as a relevant factor and in my opinion, it was entitled to adopt this approach and to enquire into this matter.' I agree with his Honour's approach. 79 For the foregoing reasons, this ground of appeal cannot be sustained. 80 It follows from the foregoing that the Committee's finding at [2] of its Final Report is invalid because it is predicated upon the Committee's failure to observe the sampling methodology of the Sampling Determination, in particular, the provisions of s 8. In the circumstances, the appropriate declaration and orders are that: 1. The Committee's Final Report be declared invalid. 2. Adjudicative Referral No. 223 be set aside. 3. The matter be remitted to the Director with a direction that he establish a differently constituted committee to determine the reference to Adjudicative Referral No. 223 according to law. 4. The first, second and third respondents pay the applicant's costs. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 10 March 2006 Counsel for the Applicant: Mr M Robinson Mr C Jackson Solicitor for the Applicant: TressCox Counsel for the Respondents: Ms R M Henderson Solicitor for the Respondents: Minter Ellison Date of Hearing: 22 August 2006, 14 September 2006 Date of Judgment: 10 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/195.html
Case: Mercado v Holmes [2000] FCA 620
Outcome: referred to
The majority in Yung (Burchett and Hill JJ) did not comment on the Committee's obligations under s 106L, but in Lee v Maskell-Knight [2004] FCAFC 2 ; (2003) 207 ALR 362 at [43] , Hill and Marshall JJ quoted Beaumont J's remarks with apparent approval. Heerey J also commented on s 106L in Mercado v Holmes [2000] FCA 620 , overturned on appeal at [2000] FCA 1848 ; (2000) 111 FCR 160, but without any disapproval of this comment: '... the task of the Committee is not to make a finding as to the occurrence or otherwise of a specific event but, pursuant to s 106L, to express an opinion in generalised and conclusionary terms by reference to a subjective and value-laden criterion, namely what members think the general body of general practitioners would think about the conduct in question: s 82(1)(a).'
Case: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1986) 86 FCR 547
Outcome: followed
Second, the grounds are in substance an impermissible attempt to propel both the Federal Magistrate and this Court into a review of the factual merits of the decision of the Tribunal. It is the Tribunal which has been entrusted by the legislature with the task of resolving factual matters: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1986) 86 FCR 547 at 558. The task of the Federal Magistrates Court is that conferred by s 476 of the Migration Act 1958 (Cth). The weight to be given to particular aspects of the claim being advanced is generally a matter for the Tribunal alone: Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
First, to the extent that the grounds assert a failure to take into account considerations which are said to be relevant to the decision that was made, they are not considerations which the Tribunal was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39 per Mason J. 17 Second, the grounds are in substance an impermissible attempt to propel both the Federal Magistrate and this Court into a review of the factual merits of the decision of the Tribunal. It is the Tribunal which has been entrusted by the legislature with the task of resolving factual matters: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1986) 86 FCR 547 at 558. The task of the Federal Magistrates Court is that conferred by s 476 of the Migration Act 1958 (Cth). The weight to be given to particular aspects of the claim being advanced is generally a matter for the Tribunal alone: Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J.
Case: Minister for Immigration &amp; Citizenship v SZHXF [2008] FCAFC 36
Outcome: followed
A further aspect of procedural fairness potentially arises by reason of an alleged failure to comply with s 424A(1) of the Migration Act 1958 (Cth). No Ground of Appeal seems to raise any such alleged non-compliance. But that was a ground raised before the Federal Magistrate and rejected. Although not raised in the Notice of Appeal , the contention emerged in the written Outline of Submissions as filed in this Court by the Appellant. Those submissions contended that there had been a breach of s 424A(1) by the non-provision to the now Appellant of " the country information it had about Kerala and India ". As explained by the Federal Magistrate, s 424A(3) provides that such information does not fall within s 424A(1). That " information ", as is apparent from the reasons of the Tribunal, was not " about " the now Appellant: SZICU v Minister for Immigration &amp; Citizenship [2008] FCAFC 1 at [23] [26] per Tamberlin, Finn and Besanko JJ; Minister for Immigration &amp; Citizenship v SZHXF [2008] FCAFC 36 at [18] [22] per Tamberlin, Gyles and Stone JJ.
Case: SZATV v Minister for Immigration &amp; Citizenship [2007] HCA 40 , 237 ALR 634
Outcome: followed
Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437 was a decision of the Full Court which concerned whether a person was a refugee who could reasonably relocate within his own country. Black CJ, at 440 1, concluded in part as follows: The appellant's primary argument must be rejected. Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders. Whitlam J agreed. The conclusions of the Chief Justice were further considered by the High Court in SZATV v Minister for Immigration &amp; Citizenship [2007] HCA 40 at [10] , [2007] HCA 40 ; 237 ALR 634 at 636 per Gummow, Hayne and Crennan JJ. Their Honours there accepted that the basic test is whether it is reasonable, in the sense of being practicable, for a claimant to relocate to a region where objectively there is no appreciable risk of the occurrence of the feared persecution.
Case: SZEHN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1389
Outcome: followed
Third, there is no obligation imposed upon the Refugee Review Tribunal to refer in its reasons to every piece of evidence that was before it: SZEHN v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. A failure on the part of the Tribunal to refer to each individual claim or to a particular aspect of the evidence in support of a claim being advanced does not necessarily lead to a conclusion that the claim or that piece of evidence has not been considered. 19 Finally, and even if the Appellant could overcome the former obstacles to his success, the present Grounds of Appeal should be dismissed upon the basis that the Tribunal did in fact consider the claims being advanced by the now Appellant. There simply has been no failure on the part of the Tribunal to consider either the entirety of the claims being advanced by the now Appellant or, more specifically, the matters now relied upon in his Grounds of Appeal .
Case: SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502
Outcome: followed
It should further be noted that this ground was not a ground raised for resolution before the Federal Magistrate. No satisfactory explanation has been provided for not previously raising it. Although this Court has a discretion to permit a new ground to be raised on appeal, there should generally be an adequate explanation for not raising the ground before the Federal Magistrate ( SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502 at [38] [41]) and leave should only be granted if it is expedient in the interests of justice to do so ( VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 at [46] [48]). In the present proceedings, the only explanation provided yesterday was that this particular ground was inserted consequent upon a meeting between the Appellant and a migration agent.