mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZKEJ v Minister for Immigration &amp; Citizenship [2007] FMCA 838
Outcome: affirmed
This is an appeal from a judgment of the Federal Magistrates Court ( SZKEJ v Minister for Immigration &amp; Citizenship [2007] FMCA 838) dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), not to grant the appellant a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act). 2 The appellant, a citizen of Pakistan, arrived in Australia on 28 August 2004 and lodged an application for a protection visa on 5 October 2004. He claimed to fear persecution for political reasons because of his involvement with the Pakistan Muslim League of which he was the local Area President. 3 On 22 October 2004, a delegate of the first respondent, the Minister for Immigration and Citizenship, refused the application. The Tribunal affirmed that decision. An application to the Federal Magistrates Court resulted in orders by consent remitting the matter to the Tribunal. A differently constituted Tribunal heard further evidence from the appellant and again affirmed the decision to refuse a protection visa. 4 The essence of the Tribunal's decision was that, as a result of a number of inconsistencies between the evidence contained in his protection visa application, the evidence he supplied at the first Tribunal hearing and the evidence he supplied at the second Tribunal hearing, the appellant was not a credible witness. As a result, the Tribunal did not accept the appellant's claims to have suffered persecution in Pakistan, nor was it satisfied that he faced a real chance of persecution were he to return there. Accordingly, the Tribunal determined that the application did not satisfy the criterion for a protection visa. 5 The grounds of the application for review in the Federal Magistrates Court were as follows: "(1) The Tribunal relied on the previous RRT decision with much information without giving the applicant opportunity to comment upon the information given to the Tribunal before and during the interview which give rise to breach of s.424 of the Migration Act . (2) Whilst the Tribunal has leeway as to how the provided information is interpreted, the decision involves jurisdictional error affecting the decision as the Tribunal has erroneously adopted the approach that generally documents obtained from Pakistan are fake. The Tribunal could have checked the authenticity of the documents from the issuing agencies through Australian overseas post. (3) The Tribunal has erred in failing to make enquiry to the adequacy of the applicant's claim that he was arrested, detained and gaold (sic jailed) for considerable period of time. (4) The Tribunal has erred in making findings that the documentary evidence provided is fake and fail to take into account matters within jurisdictional facts and erroneously failing to consider such facts." Turner FM considered and rejected each of those grounds and dismissed the application.
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: cited
The Tribunal's decision not to accept the appellant's documents as a reliable corroboration of his claims was based in part on an inconsistency between those documents and his oral evidence. There is no evidence that the Tribunal alerted the appellant to this issue. Although not relied upon by the appellant, I raised that point with counsel for the respondent. I accept the submission that the Tribunal's reasoning cannot be characterised as constituting "information" within the meaning of s 424A(1)(a) ( SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]). It was not obliged to notify the appellant in advance of its doubts arising from the inconsistencies. 12 The appeal is dismissed and the appellant is to pay the costs of the first respondent. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 7 December 2007 The Appellant appeared in person Counsel for the First Respondent: Ms V McWilliam Solicitor for the First Respondent: Clayton Utz Date of Hearing: 15 August 2007 Date of Judgment: 7 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1899.html
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Outcome: cited
Section 425(1) of the Act, subject to the exceptions in subsection (2), requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is clear that the appellant was given such an invitation. Further, the appellant was given the opportunity to rebut the Tribunal's inference that the documents were not authentic. ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.)
Case: Johnston v Cameron [2002] FCAFC 251 ; (2003) 195 ALR 300
Outcome: referred to
What is required is a "weighing in the scales" of the countervailing public interests involved: see Parish at 234 per Bowen CJ. The public interest in the need to do justice between the parties may not be the only public interest to be weighed against the principle of open justice: Johnston v Cameron [2002] FCAFC 251 ; (2003) 195 ALR 300 at [24] per Branson J. 31 There must be a strong basis for departure from the principle of open justice because to do so may affect the public interest in being able to understand the way in which disputes are resolved by the Court: Johnston v Cameron at [75] per Tamberlin J. 32 There are two principal elements of the administration of justice which the Attorney wishes to protect by an order under s 50. They extend beyond the public interest in the need to do justice between the parties and involve the public interest in the proper functioning of the National Classification Scheme. 33 The elements of the public interest which the Attorney invokes are: &#8226; the effective operation of the National Classification Scheme through the proper and effective functioning of SCAG; and &#8226; the ability of the Commonwealth, the States and Territories to cooperate through Ministerial Councils in order to develop policy and take joint action to resolve issues arising between those governments.
Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: referred to
First, the reasons customarily given to justify a claim for public interest immunity are the need to safeguard the proper functioning of the executive arm of government and the public service: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 39 and 56. They are not concerned with the public interest in the need to promote cooperation between governmental authorities in a cooperative legislative scheme. 47 Second, public interest immunity may preclude from production and admission into evidence a class of documents. It may result in the dismissal of a charge or the rejection of a claim: Sankey v Whitlam at 56-57. An order under s 50 has a far more limited effect, albeit that it impinges upon the principle of open justice. 48 Third, unlike a claim for public interest immunity for a class of documents, the Court has the opportunity in an application for orders under s 50 , to inspect the documents. The inspection which I have undertaken confirms the views expressed by Ms Davies. 49 In weighing the balance between the principle of open justice and the prejudice to the administration of justice flowing from full disclosure of the subject material, I have come to the view that there is a strong basis for departing from the principle of full transparency. My reasons are as follows.
Case: Seven Network Limited v News Limited (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1
Outcome: referred to
The degree of encroachment on the principle of open justice is an important factor to be weighed in the balance. Thus, the Court will guard against proceeding behind closed doors and it will also lean against a practice of unduly restricting public access to evidence: Parish at 236 per Bowen CJ. The observations of Sackville J in Seven Network Limited v News Limited (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1 at [27] are to similar effect, though in a different context.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
The Minister submits that this notice of appeal seeks to reintroduce grounds of review that were not included in the further amended application and were either expressly abandoned, or not pressed, before the Federal Magistrate. The Minister submits that grounds 1 and 2 are insufficiently clearly defined to warrant any response. He refers to Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] . The Minister's submissions in that regard are plainly correct. Leave to rely upon grounds 1 and should be refused.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: cited
The Minister submits that this notice of appeal seeks to reintroduce grounds of review that were not included in the further amended application and were either expressly abandoned, or not pressed, before the Federal Magistrate. The Minister submits that grounds 1 and 2 are insufficiently clearly defined to warrant any response. He refers to Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] . The Minister's submissions in that regard are plainly correct. Leave to rely upon grounds 1 and should be refused.
Case: SZIMY v Minister for Immigration and Citizenship [2007] FCA 249
Outcome: cited
There are many difficulties with that submission. In the first place, it flies directly in the face of SZHFE, a case which has at least twice been considered and followed in this Court: see SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 at [11] and SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199 at [25] . SZHFE was the subject of an application for special leave to appeal to the High Court. That application was dismissed by Kirby and Callinan JJ, who expressly stated that they agreed with the analysis of Jacobson J.
Case: SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199
Outcome: cited
There are many difficulties with that submission. In the first place, it flies directly in the face of SZHFE, a case which has at least twice been considered and followed in this Court: see SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 at [11] and SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199 at [25] . SZHFE was the subject of an application for special leave to appeal to the High Court. That application was dismissed by Kirby and Callinan JJ, who expressly stated that they agreed with the analysis of Jacobson J.
Case: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 
Outcome: distinguished
is not a case where proceedings have been discontinued before trial. In such cases it is relevant to consider and determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them: South East Queensland Electricity Board v Australian Telecommunications Commission (unreported Federal Court 10 February 1989, Pincus J); Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201.
Case: O'Neill v Mann [2000] FCA 1180 ; (2000) 101 FCR 160 
Outcome: cited
leave to discontinue is required, as in this case, O 22 r 2(3) of the Federal Court Rules 1976 (Cth) does not provide expressly for the incidence of costs. Accordingly, I approached the matter having regard to the general discretion under O 62 r 3(1) underpinned by s 43(1) of the Federal Court of Australia Act 1976 (Cth): O'Neill v Mann [2000] FCA 1180 ; (2000) 101 FCR 160 at [12] . In this case, given the conclusion I had already reached, costs would have been ordered in favour of ASIC. There is no reason to depart from that usual result now.
Case: South East Queensland Electricity Board v Australian Telecommunications Commission (unreported Federal Court 10 February 1989, Pincus J)
Outcome: distinguished
is not a case where proceedings have been discontinued before trial. In such cases it is relevant to consider and determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them: South East Queensland Electricity Board v Australian Telecommunications Commission (unreported Federal Court 10 February 1989, Pincus J); Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201.
Case: Australian Competition &amp; Consumer Commission v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union [2004] FCA 517
Outcome: cited
consider it important to take into account the penalty imposed on Walton by Ryan J. Walton's conduct was at least as serious as that of the Union, if not more serious. Walton could have resisted the coercive behaviour of the Union but took the easy way out. I do not consider it appropriate to impose a higher penalty on the Union than the one imposed on Walton. The $40,000 penalty on Walton, although within range, was (given the transient nature of the conduct) at the high end of the appropriate range. The penalty was assuaged by half of it being suspended. I do not consider a suspended penalty to be appropriate to an organisation such as the Union which is involved in the industry every day of its existence. I am mindful of the imposition by Tracey J of a $25,000 fine for a more serious breach of the BCII Act than that which occurred here. Considering the totality principle and all other factors referred to above, the appropriate penalty for the breach of s 43 of the BCII Act is $18,000. It must be borne in mind that the Union is not a profit making body but exists for the benefit of its members and is ultimately funded by those members; see Australian Competition &amp; Consumer Commission v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union [2004] FCA 517 at [8] per Gray J.
Case: Draffin v Construction, Forestry, Mining and Energy Union [2007] FCA 2011
Outcome: cited
Draffin v Construction, Forestry, Mining and Energy Union [2007] FCA 2011 , Ryan J ordered that penalties be imposed on Walton for breaches arising from what occurred on 16 November 2005. The penalties were: $40,000 for breach of s 45 of the BCII Act; $10,000 for breach of s 298K(2)(d) of the WR Act with half of the total penalty being suspended for 12 months. The penalties were agreed between Mr Draffin and Walton. His Honour considered them to be within the appropriate range especially having regard to the suspended component of the penalty; see Draffin at [3]. Although there are three breaches of separate statutory provisions, there was essentially one unlawful act committed by the Union respondents. That act was the request to Walton that Monjon leave the site because its employees were employed on AWAs. I do not consider it to be appropriate to punish any of the Union respondents more than once for one unlawful act. However, the totality principle requires that a penalty be imposed for each contravention arising out of a course of conduct, but the most serious offence may attract the vast bulk of the overall penalty. The strongest statutory expression of what occurred on 16 November 2005 is the statement that s 43 of the BCII Act was contravened. That is because that offence carries with it an element of coercion, reflecting negation of choice for Walton. That offence should attract the highest penalty and the others significantly smaller ones. I consider it important to take into account the penalty imposed on Walton by Ryan J. Walton's conduct was at least as serious as that of the Union, if not more serious. Walton could have resisted the coercive behaviour of the Union but took the easy way out. I do not consider it appropriate to impose a higher penalty on the Union than the one imposed on Walton. The $40,000 penalty on Walton, although within range, was (given the transient nature of the conduct) at the high end of the appropriate range. The penalty was assuaged by half of it being suspended. I do not consider a suspended penalty to be appropriate to an organisation such as the Union which is involved in the industry every day of its existence. I am mindful of the imposition by Tracey J of a $25,000 fine for a more serious breach of the BCII Act than that which occurred here. Considering the totality principle and all other factors referred to above, the appropriate penalty for the breach of s 43 of the BCII Act is $18,000. It must be borne in mind that the Union is not a profit making body but exists for the benefit of its members and is ultimately funded by those members; see Australian Competition &amp; Consumer Commission v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union [2004] FCA 517 at [8] per Gray J.
Case: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121
Outcome: referred to
Lastly, it was put that there was no evidence of reliance on the fifth respondent because of Dr Lakshmanan's lack of knowledge of its existence and that in order to enable the applicants to succeed they had to know of the existence of that corporation. I put to Mr Wood examples where courts have held, such as in Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127, that the act of an individual was the act of the corporation. If, here, it could be found, and I make no finding about this, that Mr Spratt was acting on behalf of the fifth respondent then his acts could be, I do not say they would be, found to be the fifth respondent's acts and likewise his omissions its omissions. 12 This application was made without notice, by only one of the respondents. The other respondents do not ask me to dismiss the case against them and the factual and legal issues which I have recounted above suggest that in order to resolve the matter at this point would require me to reserve judgment, analyse in some detail the evidence and then deliver a judgment at a later time, thereby interrupting the flow of the evidence. I do not believe that that would be in the interests of justice in a case in which fraud is alleged and where I have just had the benefit, as a trial judge, of observing two of the principal witnesses giving evidence as to the circumstances in which it is alleged that fraud or misleading conduct occurred. 13 The other basis on which Mr Wood submitted that I should dismiss the proceedings was that the allegation of fraud itself was so serious that there being the legal and evidentiary weaknesses to which he pointed in respect of the s 52 counts I should dismiss the case rather than require his client to be faced in litigation with the prospect of an adverse finding.
Case: Hummerstone v Leary [1921] 2 KB 664
Outcome: referred to
In James v ANZ Banking Group Ltd (No 2) (1985) 9 FCR 448, Toohey J considered a similar situation and (at 9 FCR at 453) his Honour referred to decisions of the English Divisional Court in Hummerstone v Leary [1921] 2 KB 664, and of the Full Court of the Supreme Court of New South Wales in Menzies v Australian Iron and Steel Limited (1952) 52 NSWSR 62. In the latter case, at the close of the plaintiff's case, counsel for the employer applied for a verdict by direction. The trial judge said that the application was premature but that it might be renewed later and that counsel could call and not call evidence as he thought fit. Toohey J said that a practice had been approved by the Full Court, which also gave its endorsement to Hummerstone v Leary and to the passage in Glanville Williams on Joint Torts and Contributory Negligence , at 59, in the following terms: 'In actions against concurrent tortfeasors there is a further rule that if a plaintiff shows that prima facie one if not both of the defendants was negligent, the judge should not at the close of the plaintiff's evidence non suit him against one defendant only, but should hear the whole case before coming to a decision.'
Case: James v ANZ Banking Group Ltd (No 2) (1985) 9 FCR 448
Outcome: followed
In James v ANZ Banking Group Ltd (No 2) (1985) 9 FCR 448, Toohey J considered a similar situation and (at 9 FCR at 453) his Honour referred to decisions of the English Divisional Court in Hummerstone v Leary [1921] 2 KB 664, and of the Full Court of the Supreme Court of New South Wales in Menzies v Australian Iron and Steel Limited (1952) 52 NSWSR 62. In the latter case, at the close of the plaintiff's case, counsel for the employer applied for a verdict by direction. The trial judge said that the application was premature but that it might be renewed later and that counsel could call and not call evidence as he thought fit. Toohey J said that a practice had been approved by the Full Court, which also gave its endorsement to Hummerstone v Leary and to the passage in Glanville Williams on Joint Torts and Contributory Negligence , at 59, in the following terms: 'In actions against concurrent tortfeasors there is a further rule that if a plaintiff shows that prima facie one if not both of the defendants was negligent, the judge should not at the close of the plaintiff's evidence non suit him against one defendant only, but should hear the whole case before coming to a decision.'
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
In Rasomen v Shell Company of Australia Ltd (1997) 75 FCR 216 at 226C-E the Full Court of this Court said: 'The cases referred to concern civil trials before a judge and jury, and the statements of principles in the judgment must be understood in that context where the trial judge is the arbiter of the law and not of the facts. In civil trials conducted before a judge alone the judge is arbiter both of the law and the facts, and the principles require modification to reflect that different considerations apply. In Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 330-331 Windeyer J said: When there is no jury, the proposition " no case" to answer may obviously mean far more than " is there evidence on which a jury could find for the plaintiff? It may mean would you, the judge, on the evidence given find for the plaintiff?" ' 20 And a reference was then given to Jones v Dunkel (101 CLR at 330-331). 21 In my opinion, if I were to approach the case on the basis of deciding whether or not I would find for the fifth respondent as the judge on the evidence given I would become involved in an adjudication of facts arising out of circumstances in which there were common elements and common alleged admissions to which the other respondents participating in the trial were party. I would run the risk of expressing a view which may mean that my continued ability to conduct the trial could be prejudiced by having in one way or another decided a matter of fact. It would involve me reviewing the evidence, analysing it in circumstances where there is a deal of evidence already, not all of it wholly consistent, and forming a view about what parts of it I should accept as being what I was told was: ' ...the applicant's case at its highest... '. 22 Ms Williams addressed that last consideration, in part, by pointing to a passage in the evidence in chief of Dr Lakshmanan in which in effect, he said that he would not have gone into the investment had he not been told that it was a good business. On the evidence thus far at its highest, all of the relevant corporate respondents and the human beings who were directors or associated with them were present during the visit to the factory on 6 March 1999 at that moment, including Mr Spratt, a then director of the fifth respondent.