mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ward v State of Western Australia [2006] FCA 1848
Outcome: cited
Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Hughes at [9]).
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: applied
420 of the Act is a facultative non-restrictive provision. Its purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to tribunals ( Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J). Section 420 informs the grounds of review specified in s 476 of the Act but has only an indirect effect on review proceedings ( Eshetu at [76] per Gaudron and Kirby JJ). That is, the section does not impose procedures the breach of which gives rise to a ground of review ( Eshetu at [77]) per Gaudron and Kirby JJ). In any event, even if the appellant were to establish that the Tribunal made a "significant mistake", that does not necessarily establish jurisdictional error. The fact that, theoretically, another Tribunal may have reached a different decision on the claims as presented by the appellant does not mean that the Tribunal failed to comply with s 420. The ground of appeal based on a contravention of s 420 is not made out. Ground 2 access to legal advice
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
is apparent that the appellant disagrees with the factual findings of the Tribunal. That does not provide a basis for the serious allegation of actual bias, nor does it indicate that the Tribunal had a mind ' incapable of alteration ' or that ' a fair minded lay observer might reasonably apprehend that the judge [or Tribunal] might not bring an impartial mind to the resolution of the question to be decided ' ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [72] ; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [25] citing Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 179 ALR 425).
Case: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
is apparent that the appellant disagrees with the factual findings of the Tribunal. That does not provide a basis for the serious allegation of actual bias, nor does it indicate that the Tribunal had a mind ' incapable of alteration ' or that ' a fair minded lay observer might reasonably apprehend that the judge [or Tribunal] might not bring an impartial mind to the resolution of the question to be decided ' ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [72] ; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [25] citing Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 179 ALR 425).
Case: SZMSS v Minister for Immigration and Citizenship [2009] FMCA 93
Outcome: distinguished
appellant submits that the Tribunal member had a closed mind or that there was a reasonable apprehension that she did not bring an unprejudiced mind to the review. The particulars and submissions given in support of this ground contained in the appellant's first set of submissions all raise factual matters concerning the appellant's claims. In his further written submissions, the appellant submits that the Tribunal failed to provide him with a genuine opportunity to speak generally about his faith at the Tribunal hearing and that it had already formed a firm view before he was questioned about his faith because it was affected by incorrect independent country information. He refers to SZMSS v Minister for Immigration and Citizenship [2009] FMCA 93 in support of this submission. Contrary to the appellant's submission, the Tribunal's reasons at [29] to [33] indicate that the appellant was given the opportunity to speak generally about his faith at the Tribunal hearing (cf SZMSS at [12]). For example, the appellant recounted his conversion to and practice of Christianity and explained his understanding of the Bible. The Tribunal asked the appellant why he converted to Christianity and what he told people when he spread the gospel. These questions were largely responsive to the matters raised by the appellant. Other questions asked by the Tribunal concerned the appellant's own practice of Christianity in China and whether he had read or studied anything other than the Bible. Otherwise, the Tribunal asked the appellant a question about each of the second coming and the appellant's view of creation. The appellant answered each question. There is no indication in the Tribunal's reasons that it asked these questions in a manner that suggested pre-judgment or a closed mind (cf SZMSS at [15]). Questions exploring the appellant's knowledge of his claimed faith, on which he relied as a basis for a well-founded fear of persecution, do not of themselves indicate bias or a closed mind or a failure to consider the appellant's claims. The Tribunal then turned to the appellant's knowledge of the Church he attended in Sydney. It put a number of questions concerning the beliefs and practices of the Church to the appellant and to Mr Ng, known as Brother Wu, who had accompanied the appellant to the hearing. The Tribunal said that it had done some reading about the Church and it appears that such reading may have informed the Tribunal's questions to the appellant and Mr Ng. However, this does not indicate bias or a closed mind. The ground of appeal based on an allegation of bias or apprehended bias by the Tribunal is not made out. Did the Tribunal fail properly to consider the appellant's claim?
Case: SZNLJ v Minister for Immigration and Citizenship [2009] FMCA 606
Outcome: affirmed
appellant is a citizen of China, born in 1978, who arrived in Australia on 6 August 2008. He claimed to fear persecution in China based on his Christian activities and beliefs and his involvement in anti-Three Gorges Dam activities. The appellant applied for a protection visa, which a delegate of the Minister refused to grant. The appellant applied to the Tribunal for review of the delegate's decision. He was invited to and did attend a hearing on 6 February 2009. The appellant and a witness attended a further hearing on 12 March 2009. The Tribunal made a decision affirming the decision of the delegate. Federal Magistrate Driver dismissed the appellant's application for review of the Tribunal decision ( SZNLJ v Minister for Immigration and Citizenship [2009] FMCA 606). This is an appeal from his Honour's decision. Before the Tribunal, the appellant claimed that he had suffered persecution in China by reason of his involvement in Christian activities and anti-Three Gorges Dam activities. He claimed to have become a Christian in May 2007 and to have distributed religious materials and the Bible. He claimed to have been involved with protests by peasants who had migrated due to the Three Gorges Dam project. He says that he was arrested, detained, tortured and subjected to physical and mental persecution as part of a process called "education through labour" between 1 November 2007 and 31 December 2007. After this incident, he went into hiding, illegally obtained an Australian visa and fled China. He claimed that he would be arrested if he returned to China because he had taken part in the underground movement of Christians and distributed religious materials and had helped the Three Gorges Dam peasants in their protests. The appellant also claimed that after he arrived in Australia, he attended the Christian Assembly of Sydney church in Lidcombe and a Christian church in Auburn. In view of the matters raised in the appeal, it is relevant to give some further detail of the basis of the appellant's claims, as recorded by the Tribunal in its decision which, in turn, included the appellant's statement made in support of his application for a protection visa.
Case: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102
Outcome: cited
is apparent that the appellant disagrees with the factual findings of the Tribunal. That does not provide a basis for the serious allegation of actual bias, nor does it indicate that the Tribunal had a mind ' incapable of alteration ' or that ' a fair minded lay observer might reasonably apprehend that the judge [or Tribunal] might not bring an impartial mind to the resolution of the question to be decided ' ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [72] ; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [25] citing Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 179 ALR 425).
Case: C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366
Outcome: cited
The appellant concedes that an objection to criminal activity does not of itself amount to political opinion. Opposition to criminality can amount to political opinion ( Saliba at 46 to 49), but where such a finding has been made something more than mere objection has been required, generally opposition to corrupt police or government officials ( Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998); V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366).
Case: Canada (Attorney-General) v Ward [1993] 2 SCR 689
Outcome: cited
It was said by Guy Goodwin-Gill in a passage approved both in this Court and the Supreme Court of Canada, that political opinion includes ' any opinion on any matter in which the machinery of State, government, and policy may be engaged ' ( The Refugee in International Law (2 nd ed, 1996) at 49 cited in Saliba at 46 and The Refugee in International Law (1 st ed, 1983) at 31 cited in Canada (Attorney-General) v Ward [1993] 2 SCR 689 at 746). It applies to opinion where a government or ruling party is the persecutor, but not necessarily so. It may also be a group unrelated to the government or opposed to it as was the case in Ward .
Case: Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998)
Outcome: cited
The appellant concedes that an objection to criminal activity does not of itself amount to political opinion. Opposition to criminality can amount to political opinion ( Saliba at 46 to 49), but where such a finding has been made something more than mere objection has been required, generally opposition to corrupt police or government officials ( Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998); V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366).
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
The Tribunal was not obliged to make the case for the appellant ( Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 50). The appellant's main claim before the Tribunal was to a well-founded fear of persecution because he was a member of the Bihari community in Bangladesh. Although there was no direct claim of persecution for political opinion, that is not the end of the matter. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ). 13 In short, the appellant did not raise matters to the Tribunal which articulated or raised a claim to persecution based on political opinion. No such claim was expressly made nor did it arise clearly on the material before the Tribunal ( NABE at [60]). There was no error on the part of the Tribunal in failing to consider such a claim. The Tribunal dealt with the matters raised by the appellant in the context of the claim made by him to the Tribunal. Not only was the Tribunal unaware that such a claim arose from the factual matters raised by the appellant, but so also was counsel who appeared before the Federal Magistrate and her Honour. 14 The appellant told the Tribunal that if he returns to Bangladesh the hooligans will try to kill him. He also said that Biharis have no human rights in Bangladesh and no protection. However, he made no claim that he had sought protection from any person. The Tribunal expressed some doubts about whether the appellant had confrontations with the hooligans, but accepted that he had objected to their illegal activities within the camp. The Tribunal expressed the view that if they had wished to harm the appellant they would have already done so. The appellant claimed no harm to himself. 15 The appellant does not challenge the Tribunal's factual conclusions but contends that the Tribunal was obliged to and did not consider whether the appellant had a well-founded fear of persecution on return to Bangladesh. Mr Karp, who appears for the appellant, pointed to matters such as the sincerity of the opinion held by the appellant and whether he would be expected to re-engage in his activities on his return to Bangladesh. However, the Tribunal concluded that there was nothing in the evidence to indicate that the appellant has suffered treatment amounting to persecution in the past and nothing in the evidence to indicate that there is a real chance that the appellant would face treatment amounting to persecution if he returns to Bangladesh.
Case: Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38
Outcome: cited
The Tribunal was not obliged to make the case for the appellant ( Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 50). The appellant's main claim before the Tribunal was to a well-founded fear of persecution because he was a member of the Bihari community in Bangladesh. Although there was no direct claim of persecution for political opinion, that is not the end of the matter. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ). 9 The appellant concedes that an objection to criminal activity does not of itself amount to political opinion. Opposition to criminality can amount to political opinion ( Saliba at 46 to 49), but where such a finding has been made something more than mere objection has been required, generally opposition to corrupt police or government officials ( Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998); V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366). 10 It was said by Guy Goodwin-Gill in a passage approved both in this Court and the Supreme Court of Canada, that political opinion includes ' any opinion on any matter in which the machinery of State, government, and policy may be engaged ' ( The Refugee in International Law (2 nd ed, 1996) at 49 cited in Saliba at 46 and The Refugee in International Law (1 st ed, 1983) at 31 cited in Canada (Attorney-General) v Ward [1993] 2 SCR 689 at 746). It applies to opinion where a government or ruling party is the persecutor, but not necessarily so. It may also be a group unrelated to the government or opposed to it as was the case in Ward .
Case: V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355
Outcome: cited
The appellant concedes that an objection to criminal activity does not of itself amount to political opinion. Opposition to criminality can amount to political opinion ( Saliba at 46 to 49), but where such a finding has been made something more than mere objection has been required, generally opposition to corrupt police or government officials ( Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998); V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366).
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
No explanation for the failure to raise the new ground below was given by the appellant other than the briefing of new counsel. I accept that there is no detriment to the first respondent other than costs and that the potential consequences to the appellant are serious. I also take into account the integrity of the appellate process as discussed in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [23] and [24]. 18 There is, in my view, little or no prospect of the proposed ground of appeal succeeding for the reasons I have given. Accordingly, the application for leave to file the amended notice of appeal is refused. There being no other ground of appeal pressed it also follows that the appeal is dismissed. The appellant is to pay the respondent's costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 8 August 2006 Counsel for the Appellant: L Karp Counsel for the First Respondent: A J McInerney Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 25 July 2006 Date of Judgment: 25 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1019.html
Case: CSR Limited v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345
Outcome: considered
Pendant Software seeks in substance an anti-suit injunction against Mr Hoff. The principles of anti-suit injunctions are well established. Mr Ehrlich who appeared on the interlocutory application for Pendant Software referred to two well known authorities in this area. In CSR Limited v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, said at 391: "The counterpart of a court's power to prevent its processes being abused [by granting a stay] is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets". Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v The Sentry Corporation , a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court. The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes." (footnotes omitted)
Case: National Mutual Holdings Pty Limited v Sentry Corporation (1989) 22 FCR 209
Outcome: considered
In National Mutual Holdings Pty Limited v Sentry Corporation (1989) 22 FCR 209 Gummow J said at 232: "In Australia, there is the further consideration that where a court has begun to exercise the judicial power of the Commonwealth in relation to a particular matter, it has the exclusive right to exercise or control the exercise of the functions which form part of that power or are incidental to it: cf Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460 at 471 3, 474."
Case: Sage v Australian Securities and Investments Commission [2005] FCA 1043
Outcome: cited
Mr Dixon, who appeared on behalf of Mr Hoff, submitted that a more appropriate approach was to consider the principles involved with potential commissions of contempt of Court in relation to an administrative proceeding which might impinge upon a Court proceeding. He referred to Sage v Australian Securities and Investments Commission [2005] FCA 1043 , and to Hammond v Commonwealth of Australia [1982] HCA 42 ; (1982) 152 CLR 188, where Gibbs CJ, with whom Mason and Murphy JJ agreed, said at 196: "The ground of the application for the injunction is that the further examination of the plaintiff, and the making of the report, would constitute a contempt of the County Court before which the criminal proceedings against the plaintiff are pending. To succeed in obtaining an injunction on that ground, the plaintiff must establish that there is a real risk, as opposed to a remote possibility, that justice will be interfered with if the Commission proceeds in accordance with its present intention. The tendency of the proposed actions to interfere with the course of justice must be a practical reality - a theoretical tendency is not enough. So much is recognized by the Builders Labourers' Case . The first question that arises is whether it would be an interference with the due administration of justice if the examination of the plaintiff were to proceed before the Commission. A witness appearing before the Commission is subject to the obligations imposed by s. 6 of the Royal Commissions Act 1902 (Cth) and s. 16 of the Evidence Act 1958 (Vict.)."