mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510
Outcome: followed
The Grounds of Appeal , it is considered, are but an impermissible attempt to review the factual merits of the decision reached by the Tribunal and should be rejected. A court conducting judicial review of an administrative decision must " beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision ": Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The " weight " to be given to the evidence or particular pieces of information is for the Tribunal to assess: Abebe v Commonwealth [1999] HCA 14 at [197] , [2004] HCA 32 ; 197 CLR 510 at 580. Justice Kirby there observed, in the context of those proceedings: [197] It may be accepted that, as the applicant submitted, much of the Tribunal's statement of reasons focuses upon what the applicant said about her husband's arrest and whether what she had said on that subject was to be believed. But it did this in the context of assessing whether her claims that she had been persecuted in the past should be accepted. The Tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. The task of making findings of fact, including findings as to credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559.
Case: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: followed
The Grounds of Appeal , it is considered, are but an impermissible attempt to review the factual merits of the decision reached by the Tribunal and should be rejected. A court conducting judicial review of an administrative decision must " beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision ": Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The " weight " to be given to the evidence or particular pieces of information is for the Tribunal to assess: Abebe v Commonwealth [1999] HCA 14 at [197] , [2004] HCA 32 ; 197 CLR 510 at 580. Justice Kirby there observed, in the context of those proceedings: [197] It may be accepted that, as the applicant submitted, much of the Tribunal's statement of reasons focuses upon what the applicant said about her husband's arrest and whether what she had said on that subject was to be believed. But it did this in the context of assessing whether her claims that she had been persecuted in the past should be accepted. The Tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. The task of making findings of fact, including findings as to credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
The Grounds of Appeal , it is considered, are but an impermissible attempt to review the factual merits of the decision reached by the Tribunal and should be rejected. A court conducting judicial review of an administrative decision must " beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision ": Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The " weight " to be given to the evidence or particular pieces of information is for the Tribunal to assess: Abebe v Commonwealth [1999] HCA 14 at [197] , [2004] HCA 32 ; 197 CLR 510 at 580. Justice Kirby there observed, in the context of those proceedings: [197] It may be accepted that, as the applicant submitted, much of the Tribunal's statement of reasons focuses upon what the applicant said about her husband's arrest and whether what she had said on that subject was to be believed. But it did this in the context of assessing whether her claims that she had been persecuted in the past should be accepted. The Tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. The task of making findings of fact, including findings as to credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559.
Case: Nguyen v Migration Review Tribunal [2008] FCA 524
Outcome: followed
These findings of the Tribunal were based upon a consideration of the entirety of the evidence which was placed before it, including the evidence advanced by the now Appellant. Those findings of the Tribunal were open to it to be made. Clearly, the ultimate findings and reasons were based upon an assessment of the Appellant's credibility. The task of making those findings has been entrusted to the Tribunal, and not the Federal Magistrates Court or (more relevantly) to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings " par excellence " entrusted to the Tribunal: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration &amp; Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration &amp; Citizenship [2008] FCA 257 at [27] per Lander J.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407
Outcome: followed
These findings of the Tribunal were based upon a consideration of the entirety of the evidence which was placed before it, including the evidence advanced by the now Appellant. Those findings of the Tribunal were open to it to be made. Clearly, the ultimate findings and reasons were based upon an assessment of the Appellant's credibility. The task of making those findings has been entrusted to the Tribunal, and not the Federal Magistrates Court or (more relevantly) to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings " par excellence " entrusted to the Tribunal: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration &amp; Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration &amp; Citizenship [2008] FCA 257 at [27] per Lander J.
Case: SZEOQ v Minister for Immigration &amp; Citizenship [2008] FCA 257
Outcome: followed
These findings of the Tribunal were based upon a consideration of the entirety of the evidence which was placed before it, including the evidence advanced by the now Appellant. Those findings of the Tribunal were open to it to be made. Clearly, the ultimate findings and reasons were based upon an assessment of the Appellant's credibility. The task of making those findings has been entrusted to the Tribunal, and not the Federal Magistrates Court or (more relevantly) to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings " par excellence " entrusted to the Tribunal: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration &amp; Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration &amp; Citizenship [2008] FCA 257 at [27] per Lander J.
Case: SZKQQ v Minister for Immigration &amp; Citizenship [2008] FCA 242
Outcome: followed
These findings of the Tribunal were based upon a consideration of the entirety of the evidence which was placed before it, including the evidence advanced by the now Appellant. Those findings of the Tribunal were open to it to be made. Clearly, the ultimate findings and reasons were based upon an assessment of the Appellant's credibility. The task of making those findings has been entrusted to the Tribunal, and not the Federal Magistrates Court or (more relevantly) to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings " par excellence " entrusted to the Tribunal: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration &amp; Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration &amp; Citizenship [2008] FCA 257 at [27] per Lander J.
Case: SZLHA v Minister for Immigration &amp; Citizenship [2008] FMCA 143
Outcome: cited
On 4 February 2008 the Federal Magistrates Court dismissed an application seeking review of the Tribunal's decision: SZLHA v Minister for Immigration &amp; Citizenship [2008] FMCA 143. The Appellant now appeals to this Court. The handwritten Notice of Appeal sets forth the Grounds of Appeal as follows (without alteration): 1. the Tribunal did not carefully consider the information which was in favour of the applicant. 2. the Tribunal no evidence or other materials to justify the making of the decision. 3. the Tribunal failed to grant to me a visa without any proper grounds or any proper investigation. 4 The Appellant appeared before the Court this morning unrepresented, but with the assistance of an interpreter.
Case: VJAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 178
Outcome: followed
In such circumstances it cannot be concluded that there was any failure on the part of the Tribunal to make a " proper investigation ". Nor was such a contention advanced before the Federal Magistrates Court. It should further be noted that even had the Appellant requested that a witness be called before the Tribunal, the Tribunal was under no duty to allow such evidence to be given: Migration Act 1958 (Cth), s 426(3). As was the like conclusion in VJAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 178 , there is not considered in the present proceedings to be any reason to find that an obligation was imposed upon the Tribunal to call or to hear further evidence from the fellow Falun Gong practitioner referred to by the now Appellant. 22 The final ground is thus also rejected. 23 An Affidavit was filed in Court on the day of hearing seeking a fixed costs order in the event that the appeal was dismissed. That Affidavit sought a fixed costs order in the sum of $2,200. There is no reason to question that quantification.
Case: Ellis v Rowbotham [1900] 1 QB 740
Outcome: cited
authority establishes that the statutory provision has no application where, as in the case of Projects 1 and 2, payment is made in advance: see Ellis v Rowbotham [1900] 1 QB 740 at 743, 744; The Australian Guarantee Corporation Limited v Balding [1930] HCA 10 ; (1930) 43 CLR 140 at 152-154 per Isaacs J; Amad v Grant; Grosglik v Grant [1947] HCA 9 ; (1947) 74 CLR 327 at 338 per Latham CJ (as noted in AOL's submissions, Dixon J (as his Honour then was) at 346 also cited Ellis v Rowbotham with apparent approval of it as supporting the present proposition at 346); Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 ; (2000) 10 BPR 18 ,235 at [147].
Case: The Australian Guarantee Corporation Limited v Balding [1930] HCA 10 ; (1930) 43 CLR 140
Outcome: cited
authority establishes that the statutory provision has no application where, as in the case of Projects 1 and 2, payment is made in advance: see Ellis v Rowbotham [1900] 1 QB 740 at 743, 744; The Australian Guarantee Corporation Limited v Balding [1930] HCA 10 ; (1930) 43 CLR 140 at 152-154 per Isaacs J; Amad v Grant; Grosglik v Grant [1947] HCA 9 ; (1947) 74 CLR 327 at 338 per Latham CJ (as noted in AOL's submissions, Dixon J (as his Honour then was) at 346 also cited Ellis v Rowbotham with apparent approval of it as supporting the present proposition at 346); Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 ; (2000) 10 BPR 18 ,235 at [147].
Case: Amad v Grant; Grosglik v Grant [1947] HCA 9 ; (1947) 74 CLR 327
Outcome: cited
authority establishes that the statutory provision has no application where, as in the case of Projects 1 and 2, payment is made in advance: see Ellis v Rowbotham [1900] 1 QB 740 at 743, 744; The Australian Guarantee Corporation Limited v Balding [1930] HCA 10 ; (1930) 43 CLR 140 at 152-154 per Isaacs J; Amad v Grant; Grosglik v Grant [1947] HCA 9 ; (1947) 74 CLR 327 at 338 per Latham CJ (as noted in AOL's submissions, Dixon J (as his Honour then was) at 346 also cited Ellis v Rowbotham with apparent approval of it as supporting the present proposition at 346); Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 ; (2000) 10 BPR 18 ,235 at [147].
Case: Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 ; (2000) 10 BPR 18 ,235
Outcome: cited
authority establishes that the statutory provision has no application where, as in the case of Projects 1 and 2, payment is made in advance: see Ellis v Rowbotham [1900] 1 QB 740 at 743, 744; The Australian Guarantee Corporation Limited v Balding [1930] HCA 10 ; (1930) 43 CLR 140 at 152-154 per Isaacs J; Amad v Grant; Grosglik v Grant [1947] HCA 9 ; (1947) 74 CLR 327 at 338 per Latham CJ (as noted in AOL's submissions, Dixon J (as his Honour then was) at 346 also cited Ellis v Rowbotham with apparent approval of it as supporting the present proposition at 346); Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 ; (2000) 10 BPR 18 ,235 at [147].
Case: NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539
Outcome: referred to
The application for review was dismissed by Gyles J on 30 April 2002: NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539. On 25 November 2002 the Full Court dismissed an appeal from that decision: Applicant NABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 418.
Case: Applicant NABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 418
Outcome: referred to
The application for review was dismissed by Gyles J on 30 April 2002: NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539. On 25 November 2002 the Full Court dismissed an appeal from that decision: Applicant NABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 418.
Case: SZDFW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821
Outcome: referred to
On 13 October 2005 the applicant lodged his current application for judicial review in the Federal Magistrates Court to review the delegate's decision and that application was dismissed on 13 February 2006. 4 The Magistrate said that the applicant's application challenges the delegate's decision and she said it was doomed to fail because, among other things, the decision of the delegate was subsumed in the decision of the Tribunal. 5 I do not think that the applicant's proposed appeal enjoys any reasonable prospect of success. This case is similar to the case which came before Wilcox J in SZDFW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821. The Tribunal conducted a full merits review in relation to the decision of the delegate and the applicant was given every opportunity to present his case (see s 415 of the Migration Act 1958 (Cth), Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344). This Court found that the decision of the Tribunal was in no way affected by jurisdictional error. The delegate's decision is now of no significance having regard to the fact that it was reviewed by the Tribunal. 6 I think that in view of the history of this matter as I have outlined it, the order prohibiting without leave the filing of a further application to review the decision of the delegate and the decision of the Tribunal is justified. 7 The application for leave to appeal is dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 31 May 2006 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Ms B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 May 2006 Date of Judgment: 10 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/662.html
Case: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344
Outcome: referred to
On 13 October 2005 the applicant lodged his current application for judicial review in the Federal Magistrates Court to review the delegate's decision and that application was dismissed on 13 February 2006. 4 The Magistrate said that the applicant's application challenges the delegate's decision and she said it was doomed to fail because, among other things, the decision of the delegate was subsumed in the decision of the Tribunal. 5 I do not think that the applicant's proposed appeal enjoys any reasonable prospect of success. This case is similar to the case which came before Wilcox J in SZDFW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821. The Tribunal conducted a full merits review in relation to the decision of the delegate and the applicant was given every opportunity to present his case (see s 415 of the Migration Act 1958 (Cth), Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344). This Court found that the decision of the Tribunal was in no way affected by jurisdictional error. The delegate's decision is now of no significance having regard to the fact that it was reviewed by the Tribunal. 6 I think that in view of the history of this matter as I have outlined it, the order prohibiting without leave the filing of a further application to review the decision of the delegate and the decision of the Tribunal is justified. 7 The application for leave to appeal is dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 31 May 2006 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Ms B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 May 2006 Date of Judgment: 10 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/662.html
Case: Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398 at [70]
Outcome: cited
The function of the referral step is not to fix in stone all the details of a proposed "action" for the subsequent approval process. Rather, this mechanism results in the proposal either being brought within the Environment Act assessment and approval regime, or being exempted from the requirements of assessment and approval under the Act. In Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398 at [70], Stone J described the scheme of the Act as providing an initial clearing house so that actions that are likely to have a significant impact on the environment are properly assessed and those that do not fall into that category may be identified in a timely way and not impeded. The referral mechanism operates as a kind of triage system. It is not the function of the triage nurse to make a detailed diagnosis, let alone prescribe treatment. 23 Since the environmental approval process for a major project can stretch out over years, as witness the present case, it would be a strange result if making an environment positive (or environment neutral but cost positive) change meant proponents were forced to start all over again, with inevitable cost and delay. If Blue Wedges' argument is correct there would be a strong disincentive for proponents to keep looking for environmentally friendly changes to a project. 24 The text of the Environment Act does not support Blue Wedges' construction. 25 The term "action" is defined in the broadest terms. By s 523 it includes (a) a project; and (b) a development; and (c) an undertaking; and (d) an activity or series of activities; and (e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d). This width of definition is not surprising, given the varied work that the term has to do in the Act, including in the prohibitions in Pt 3, and given the limitless range of possible human conduct which might affect the environment, ranging from major complex operations like the Project to a simple, transient event. 26 When it comes to particular proposed actions, the Act does not purport to define a particular proposed action by reference to a description of the proposed action given in any document. Further, subject to certain limited exceptions described below, the Act does not require the referral to contain any particular information or to descend to any particular level of detail about the proposed action.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119
Outcome: cited
Thus, the power (which is expressed in discretionary, non-obligatory terms) to request information depends, not on an objective assessment of the sufficiency of the information before the Minister, but on the Minister's judgment (no doubt reasonably formed) as to whether he or she has enough information to make an informed decision. As to the difficulty of making out a legal challenge to decisions made under such powers, see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277.
Case: Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663 at 667
Outcome: followed
In my view this is one of the exceptional occasions where regulations can be used as an aid to the construction of an Act. The Act, in this case the Environment Act, "provides a framework built on contemporaneously prepared regulations": Hanlon v Law Society [1981] AC 124 at 193; Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663 at 667.