mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: followed
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science &amp; Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.
Case: Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13
Outcome: considered
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual's freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration. 27 Notwithstanding considerable reservation, it is considered that the Tribunal should have proceeded to make an inquiry of either Mr Nuruzzaman or Mr Hossain or the Association. The issue to which the Certificates were directed was properly accepted by Counsel for the Minister as being centrally relevant to the decision reached. The second Ground of Appeal , construed as it was argued as a contention that the Federal Magistrates Court erred in not concluding that the Tribunal's decision was vitiated by reason of a failure to make inquiries, thus prevails. 28 Any decision which requires a further inquiry to be made, it must be accepted, poses " the risk that an inquiry could never be satisfactorily concluded in the knowledge that another unturned stone may be hiding additional relevant information ": McMillan J, Recent Themes in Judicial Review of Federal Executive Action (1996) 24 FL Rev 347 at 381. But, in the present appeal, a simple phone call may well have been all that was required. The importance of the decision to the Appellant and his family, it is considered, warranted at least such a simple step being undertaken.
Case: SZIAI v Minister for Immigration [2008] FMCA 788
Outcome: cited
There thereafter followed two hearings before the Refugee Review Tribunal, each of which was set aside by the Federal Magistrates Court. The decision of the Tribunal which was the subject of review by the Federal Magistrates Court now under appeal is that handed down on 19 February 2008. That decision affirmed the decision of the Minister's delegate not to grant a protection visa. The Federal Magistrates Court dismissed the application made to that Court: SZIAI v Minister for Immigration [2008] FMCA 788. 4 The Notice of Appeal as filed in this Court raises four Grounds of Appeal , being contentions that the learned Federal Magistrate: (i) erred by failing to find that the Tribunal committed jurisdictional error in failing to take into account delays and/or the number of occasions on which the now Appellant was required to give evidence, caused by the number of occasions upon which the claim was remitted to the Tribunal, in making credibility findings based on alleged inconsistencies at different hearings; (ii) further erred in finding that the Tribunal had provided a fair proceeding for the now Appellant when relying on evidence from a third-party questioning the authenticity of documents relied on by the Appellant to corroborate his claim to be a member of Ahmadiyya Muslim Jamaat; (iii) further erred in finding that the Tribunal's decision was " not unreasonable ", in circumstances where the decision was affected by apprehended bias; (iv) further erred in finding that the decision of the Tribunal was a privative clause decision, in circumstances where the Tribunal failed to comply with the requirements of ss 424A and 424AA of the Migration Act 1958 (Cth). In addition to these Grounds , the Appellant now seeks leave to amend the existing Notice of Appeal to raise an additional ground, namely: (v) a contravention of s 91R(3) of the Migration Act 1958 (Cth). 5 When the appeal was called on for hearing, Counsel for the Appellant only sought to press the second and fifth Grounds. The remaining Grounds were abandoned.
Case: SZITU v Minister for Immigration &amp; Citizenship [2008] FCA 758
Outcome: followed
In entertaining the current appeal, it is relevant to recall that this Court is exercising appellate jurisdiction, being the jurisdiction conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) to hear an appeal from a decision of the Federal Magistrates Court. This Court is not exercising the original jurisdiction conferred by the Commonwealth legislature upon the Federal Magistrates Court by s 476 of the 1958 Act. The original jurisdiction of this Court conferred by s 476A of the 1958 Act is -- and is expressed to be -- a " limited jurisdiction ". See: SZITU v Minister for Immigration &amp; Citizenship [2008] FCA 758 at [32] per Greenwood J. 9 No argument was advanced, however, on behalf of the Respondent Minister denying the jurisdiction of this Court to entertain the fifth Ground sought to be advanced. The Respondent Minister's position was that this Court should decline to entertain the fresh ground -- not as a matter of jurisdiction -- but rather as a matter of discretion. No Notice of Objection to the competency of the appeal had been filed. Counsel for the Respondent Minister submitted that leave to raise an argument as to non-compliance with s 91R(3) should be refused in circumstances where that was an argument raised for resolution before the Federal Magistrates Court, where the now Appellant was there represented by Counsel, and where (for whatever reason) Counsel then appearing for the now Appellant expressly abandoned reliance upon any alleged non-compliance. 10 In the absence of submissions being advanced which properly addressed the concerns as to jurisdiction, and where ultimately it is unnecessary to do so, the present appeal has not been resolved on the basis that this Court does not have jurisdiction to entertain the proposed further Ground of Appeal . If the issue had been pursued, it is considered that it should have been resolved not by a single Judge of this Court but by the Full Court constituted by three Judges.
Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 , 102 ALD 226
Outcome: followed
Section 91R(3) provides as follows: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. This provision, it has been said, " suffers from a lack of clarity ": SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [10] , [2008] FCAFC 105 ; 102 ALD 226 at 231 per Spender, Edmonds and Tracey JJ. 38 The contention sought to be raised concerns the fact that the Tribunal correctly concluded that the Appellant's conduct in attending the Ahmadi mosque in Australia was to be disregarded. The Tribunal thus relevantly concluded: Since I do not accept that the applicant is a genuine Ahmadi I am not satisfied that he has engaged in his conduct in attending the Ahmadi mosque here otherwise than for the purpose of strengthening his claim to be a refugee. I consider, therefore, that his conduct in attending the Ahmadi mosque here is to be disregarded in accordance with subsection 91R(3) of the Act. 39 Notwithstanding the assurance provided by the Tribunal that the attendance at the mosque was to be " disregarded ", Counsel for the Appellant submitted that the Tribunal nevertheless went on to have regard to that attendance when it thereafter concluded: I note for the sake of completeness that, since I do not accept that the applicant has told the truth about his claimed conversion to the Ahmadi faith in Bangladesh, I do not accept that there is a real chance that he will be perceived as a convert to the Ahmadi faith if he returns to Bangladesh now or in the reasonably foreseeable future. Such a " perception ", it was contended, could only have been founded upon the Appellant's attendance at the mosque.
Case: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Outcome: followed
A party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Appl'd: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18] , [2002] FCAFC 105 ; 190 ALR 543 at 548 9 per Hill, O'Loughlin and Tamberlin JJ. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The importance of litigants, especially in the present statutory context, raising all arguments in need of resolution in the Federal Magistrates Court cannot be underestimated. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J referred to the appellate jurisdiction of this Court being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and continued: [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.
Case: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183
Outcome: followed
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science &amp; Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.
Case: WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277
Outcome: followed
There was, however, no opposition to advancing the submission as to a failure to make inquiries in terms of the decision being unreasonable. So structured, the dispute centred upon whether or not it was unreasonable not to have made further inquiries. No submission was advanced on behalf of the Appellant, nor could it have been advanced, that the power of the Tribunal to make further inquiries imposed upon it " any duty or obligation to do so ": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] , [2007] FCA 1592 ; 164 FCR 14 at 25 per Allsop J; WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] . Nor was any submission advanced on behalf of the Respondent Minister that there was not a line of inquiry which was readily available to the Tribunal and centrally relevant to the task being undertaken: eg, Li v Minister for Immigration and Citizenship [2007] FCA 1098 at [28] , [2007] FCA 1098 ; 96 ALD 361 at 367 per Kenny J. The simple submission advanced on behalf of the Respondent Minister was that there was material upon which the Tribunal could justifiably have based its decision and there was, in those circumstances, no duty to inquire further. The response of the Association was disclosed to the now Appellant and he provided his response.
Case: Wecker v Secretary, Department of Education Science &amp; Training [2008] FCAFC 108
Outcome: followed
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science &amp; Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.
Case: Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62
Outcome: cited
The exercise of the Court's discretion pursuant to s 87A imports the same principles as those applying to the making of a consent determination of native title under s 87. The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act ( Hughes at [8] citing Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7]).
Case: Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109
Outcome: cited
As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ).
Case: Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6
Outcome: cited
As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ).
Case: Nangkiriny v Western Australia [2004] FCA 1156
Outcome: cited
As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ).