mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: referred to
definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-572 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).
Case: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Outcome: referred to
definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]).
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: referred to
definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]).
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: referred to
is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-572 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).
Case: Jess v Scott &amp; Ors (1986) 12 FCR 187
Outcome: referred to
Jess v Scott &amp; Ors (1986) 12 FCR 187 at page 195, the Full Court said: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though failed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Mr Nicholls' only reason why he did not file the notice of appeal within the time prescribed by O 52 r 15(1), is that he was preoccupied with an appeal which he was then conducting in the Court. He does not suggest in his affidavit that he did not know that he had to file the notice of appeal within the time prescribed by O 52 r 15(1). He chose not to file it because he chose, as he was entitled, to use that time in preparation for his appeal. He says he was occupied on that appeal to 13 August 2009, but that cannot be right because as I pointed out to him during his argument, the appeal to which he refers was in fact dismissed on 11 August 2009.
Case: Cilli v Abbott (1981) 53 FLR 108
Outcome: cited
As a general rule, costs of an application follow the event. A key reason for this is because, as pointed out by the Full Court in Cilli v Abbott (1981) 53 FLR 108 at 111, 'the object of costs is not to penalise; it is to indemnify the successful party in relation to expense to which he has been put by reason of legal proceedings'. This principle was adopted in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 per Mason CJ at 543, Toohey J at 563 and McHugh J at 567 in the context of both civil and criminal proceedings.
Case: Gauci v Kennedy [2006] FCA 869
Outcome: approved
In my view, a decision of a Federal Magistrate dismissing an application pursuant to r 13.10 Federal Magistrates Court Rules 2001 is an interlocutory decision, requiring leave of the Federal Court to appeal: Rana v University of South Australia [2004] FCA 559 ; Gauci v Kennedy [2006] FCA 869. No leave to appeal has been sought. However this point in my view is moot because, as I indicated earlier in this judgment, both parties were of the view that the appeal be dismissed. The real issue before me is in relation to costs.
Case: Han v Minister for Immigration (No 2) [2006] FMCA 1251
Outcome: cited
Subsequently, on 14 June 2006 the appellant filed an application seeking an order that the orders of Jarrett FM be set aside. On 28 August 2006, Jarrett FM made orders setting aside his orders of 6 February 2006, that the applicant pay the respondent's costs of and incidental to its application filed 14 June 2006, and that the Migration Review Tribunal be joined as a second respondent to those proceedings. His Honour also made directions including that the appellant's further application be listed for hearing on 23 October 2006 ( Han v Minister for Immigration (No 2) [2006] FMCA 1251). 4 I understand that the further application was heard by Jarrett FM on 23 October 2006, and his Honour has reserved judgment. 5 As a result of this sequence of events, it follows that there is no reason for the appellant to maintain its appeal from the judgment of Jarrett FM of 6 February 2006. Indeed, the appellant before me this morning submitted draft orders including that the appeal be dismissed. 6 The issue upon which the parties do not agree however is the issue of costs in this appeal. 7 In summary, the appellant has sought orders that: 1. The appeal be dismissed. 2. Costs of and incidental to the appeal follow the decision of Jarrett FM currently reserved (Federal Magistrates Court proceedings File No BRG772/2005), with the result that if the appellant is successful before Jarrett FM, the respondent should pay the costs of the appeal, and vice versa if the respondents are successful before Jarrett FM.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: cited
As a general rule, costs of an application follow the event. A key reason for this is because, as pointed out by the Full Court in Cilli v Abbott (1981) 53 FLR 108 at 111, 'the object of costs is not to penalise; it is to indemnify the successful party in relation to expense to which he has been put by reason of legal proceedings'. This principle was adopted in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 per Mason CJ at 543, Toohey J at 563 and McHugh J at 567 in the context of both civil and criminal proceedings.
Case: MLGXAL v MIMIA [2006] FCA 966
Outcome: cited
In summary, the respondent has submitted: &#8226; Where an appeal arises from a decision which has now been set aside, the appeal should be dismissed and the appellant ordered to pay the respondent's costs of and incidental to the appeal. &#8226; The appropriate way to proceed in relation to decisions in the Federal Magistrates Court under r 13.10 is to make an application to set aside the decision under r 16.05. The appellant eventually did this and was successful in having the decision set aside. This approach has been endorsed in a number of cases including MZWXC v MIMIA [2006] FCA 172 and MLGXAL v MIMIA [2006] FCA 966. &#8226; The appeal in this matter was always misconceived as to the proper course to proceed, and incompetent as no application for leave to appeal was filed. &#8226; The decision of Jarrett FM on the substantive hearing has no relevance to this appeal. Further, Ms Wheatley for the respondent submitted in Court this morning that costs in this appeal bear no relevance to the new matter before Jarrett FM. 13 It is strongly argued by the respondent, on the basis of such authorities as MZWXC and MLGXAL that the appropriate course for the appellant to have adopted in the first place would have been to apply to have the decision of Jarrett FM set aside. I note from the notice of appeal that the appellant was unrepresented, or at least appeared unrepresented, at the time of filing, and he may not have understood that an application to set aside the judgment of 6 February 2006 was the proper course in the circumstances. Irrespective of this, the respondent has been put to expense by legal proceedings in the form of this appeal, and this appeal has now been rendered nugatory by the appellant successfully applying to have the original judgment set aside and a fresh application determined by the Federal Magistrates Court. 14 Before me this morning Mr Boccabella pressed that the appellant's case has merit, and that this should influence my approach to making a costs order in this matter. Counsel distinguished MZWXC and MLGXAL on this basis namely that the applications in those cases appeared to lack merit. In my view it is unnecessary to examine this issue in detail, other than to observe that it is clear that there is sufficient merit in the appellant's case to justify orders setting aside the decision of Jarrett FM of 6 February 2006, but that the merits of the appellant's application before Jarrett FM will be considered by Jarrett FM in his judgment in due course. All parties agree that this appeal should be dismissed because it has been overtaken by events at the appellant's instigation. The merits of the substantive case now before Jarrett FM are of little relevance in the context before me.
Case: MZWXC v MIMIA [2006] FCA 172
Outcome: cited
In summary, the respondent has submitted: &#8226; Where an appeal arises from a decision which has now been set aside, the appeal should be dismissed and the appellant ordered to pay the respondent's costs of and incidental to the appeal. &#8226; The appropriate way to proceed in relation to decisions in the Federal Magistrates Court under r 13.10 is to make an application to set aside the decision under r 16.05. The appellant eventually did this and was successful in having the decision set aside. This approach has been endorsed in a number of cases including MZWXC v MIMIA [2006] FCA 172 and MLGXAL v MIMIA [2006] FCA 966. &#8226; The appeal in this matter was always misconceived as to the proper course to proceed, and incompetent as no application for leave to appeal was filed. &#8226; The decision of Jarrett FM on the substantive hearing has no relevance to this appeal. Further, Ms Wheatley for the respondent submitted in Court this morning that costs in this appeal bear no relevance to the new matter before Jarrett FM. 13 It is strongly argued by the respondent, on the basis of such authorities as MZWXC and MLGXAL that the appropriate course for the appellant to have adopted in the first place would have been to apply to have the decision of Jarrett FM set aside. I note from the notice of appeal that the appellant was unrepresented, or at least appeared unrepresented, at the time of filing, and he may not have understood that an application to set aside the judgment of 6 February 2006 was the proper course in the circumstances. Irrespective of this, the respondent has been put to expense by legal proceedings in the form of this appeal, and this appeal has now been rendered nugatory by the appellant successfully applying to have the original judgment set aside and a fresh application determined by the Federal Magistrates Court. 14 Before me this morning Mr Boccabella pressed that the appellant's case has merit, and that this should influence my approach to making a costs order in this matter. Counsel distinguished MZWXC and MLGXAL on this basis namely that the applications in those cases appeared to lack merit. In my view it is unnecessary to examine this issue in detail, other than to observe that it is clear that there is sufficient merit in the appellant's case to justify orders setting aside the decision of Jarrett FM of 6 February 2006, but that the merits of the appellant's application before Jarrett FM will be considered by Jarrett FM in his judgment in due course. All parties agree that this appeal should be dismissed because it has been overtaken by events at the appellant's instigation. The merits of the substantive case now before Jarrett FM are of little relevance in the context before me.
Case: Rana v University of South Australia [2004] FCA 559
Outcome: approved
In my view, a decision of a Federal Magistrate dismissing an application pursuant to r 13.10 Federal Magistrates Court Rules 2001 is an interlocutory decision, requiring leave of the Federal Court to appeal: Rana v University of South Australia [2004] FCA 559 ; Gauci v Kennedy [2006] FCA 869. No leave to appeal has been sought. However this point in my view is moot because, as I indicated earlier in this judgment, both parties were of the view that the appeal be dismissed. The real issue before me is in relation to costs.
Case: Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 , 66 ATR 225
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.
Case: NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 , 195 ALR 207
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.