mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105, 190 ALR 543
Outcome: cited
for the Appellant accepts what must inevitably be common ground as between the parties. It is thus accepted that a party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Applied: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33] , 104 ALD 22 at 30. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68
Outcome: applied
for the Appellant accepts what must inevitably be common ground as between the parties. It is thus accepted that a party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Applied: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33] , 104 ALD 22 at 30. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
Case: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2008] HCATrans 404
Outcome: cited
provision, it has repeatedly been acknowledged, " suffers from a lack of clarity ": SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 , 170 FCR 515. Spender, Edmonds and Tracey JJ there usefully summarised as follows some of the less contentious matters involved in the construction of that provision: [10] In a series of cases decided under s 91R(3) , it has been common ground that the subsection suffers from a lack of clarity. Before turning to the difficulties to which the drafting gives rise, it will be convenient to mention some uncontentious matters relating to the construction of the subsection. First, the subsection is cast in imperative terms: it obliges a decision maker to disregard conduct in Australia by an applicant for a protection visa subject to the proviso in paragraph (b). Secondly, the stipulation that a decision maker must "disregard" an applicant's conduct in Australia requires that such conduct not be brought into consideration when determining whether the applicant has a well-founded fear of being persecuted for a Convention reason. Thirdly, although the Explanatory Memorandum and the second reading speech both indicate that s 91R(3) of the Act was introduced to deal with sur place claims, it is not, in terms, so confined. Conduct in Australia which is undertaken in order to attract the adverse attention of the authorities in the applicant's country of origin, would support a sur place claim. Other types of conduct may not. Section 91R(3) obliges decision makers to disregard "any" conduct by the applicant in Australia. That requirement is qualified by paragraph (b) which provides scope for an applicant to satisfy the decision maker that he or she has engaged in the relevant conduct "otherwise than for the purpose of strengthening the person's claims to be a refugee ...". Conduct in Australia which attracts adverse attention from a foreign government for Convention related reasons would strengthen a person's claim to be a refugee. So too, however, would conduct in Australia which, in an evidentiary sense, rendered it more likely that an applicant had engaged in conduct in his or her home country which led to persecution in that country. Both types of conduct may be engaged in in Australia. ... Decisions of this Court were the catalyst for the introduction of s 91R(3). Those decisions held that a person could become a refugee as a result of conduct, deliberately pursued in Australia, to attract the adverse attention of the authorities in his or her country of origin: [2008] FCAFC 105 at [24] . Special leave to appeal, it should be noted, has been granted: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2008] HCATrans 404.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
for the Appellant resisted such a conclusion and submitted that the Tribunal's reasons did not disclose any finding as to " purpose ". He accepted that the Tribunal's reasons were not to be scrutinised in an " over-zealous " manner and with an " eye keenly attuned to the perception of error ": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 to 272, see also Kirby J at 291; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9. The present facts would also appear to stand in contrast to those in SZBEL where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ observed: [3] ... At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be 'implausible'... [2006] HCA 63 at [3] , [2006] HCA 63 ; 228 CLR 152 at 155. Contrary to the case sought to be advanced on behalf of the Appellant that he was denied the opportunity guaranteed by s 425 by not having the question as to the genuineness of his faith specifically put to him, upon a fair reading of the Tribunal's reasons (cf Liang, supra) it emerges that the Tribunal did " challenge " the Appellant's account. The reasons for decision of the Tribunal thus recount the following exchange: [96] ... I also mentioned to the applicant that it was of concern to the Tribunal that he did not tell his agent his real name or that he was in fear of religious persecution. It was also of concern to the Tribunal that he did not attend church until 15 November 2000, even though he arrived in Australia in June 1999. I mentioned to the applicant that a chronology of his applications indicated that he had exhausted all lines of application by August 2000. The applicant stated that he did not know his application had been rejected. I mentioned to the applicant that it was difficult for the Tribunal to understand why he did not attend the church before November 2000 given his claims of being a committed Christian. I mentioned to the applicant that he told the Tribunal that the reason he attended an underground church in China was because he valued the community spirit which was not available at the official church. I mentioned to the applicant that if that was the case it was difficult to see why he did not seek that out as soon as he arrived in Australia where he could do so freely. The applicant stated that he had no Christian friends so he worshiped [ sic ] on his own. [97] I discussed with the applicant section 91R(3) of the Act. The applicant stated that he did not go to church with the intention of enhancing his refugee claims.
Case: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
Outcome: cited
" object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it ": SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [50] , [2005] HCA 24 ; 228 CLR 294 at 312 per McHugh J. Subject to the qualifications and exceptions set forth, " the evident object of s 424A is that ... fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it ": [2005] HCA 24 at [118] , [2005] HCA 24 ; 228 CLR 294 at 331 per Gummow J. It was made clear in SAAP that the Tribunal commits jurisdictional error if it fails to comply with the requirements of s 424A. The purpose sought to be achieved by s 424A , it has also been recognised, is twofold: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. Branson, Finn and Bennett JJ there observed: [31] The obligation imposed on the Tribunal by s 424A relevantly had two aspects; first, to give the respondent particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (s 424A(1)(a)) and secondly, to ensure, as far as reasonably practicable, that the respondent understood why the information was relevant to the review (s 424A(1)(b)).
Case: MZKAM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 428
Outcome: cited
principal consideration to be taken into account when exercising the discretion is the interest of the proper administration of justice and the need to ensure that a decision has been made in a procedurally fair manner and in accordance with law. In some cases arguments have been entertained and leave granted to file a Notice of Contention even after the conclusion of a hearing: e.g. MZKAM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 428. A further consideration relevant to the exercise of discretion is the fact that the issues sought to be pursued in the Notice of Contention are similar to those issues previously advanced before the Federal Magistrate. In the circumstances it is considered that time should be extended to allow the filing of the Notice of Contention .
Case: MZXKH v Minister for Immigration and Citizenship [2007] FCA 663
Outcome: cited
proposed new Ground in the present proceeding seeks to contend that the " strict requirements " of s 424A(1)(b) have not been satisfied because the Tribunal's letter forwarded to the Appellant failed to identify the purpose for which information set forth could be used. The letter providing notice to the Appellant of the information in respect to which " comments or response " were sought was dated 28 July 2008. That letter set forth " information " and continued to state as follows: The above information is relevant because it could lead the Tribunal to find that you did not fear persecution in China, as presently claimed. Your statements to the Departmental officers in September 2007 that you were willing to return to China could lead the Tribunal to find that you were not in fear of persecution should you return to China. The fact that you went to the Chinese Consulate and were issued with a travel document in 2005 and your statement to the Departmental officer that you decided not to go to China in 2005 because you could earn more money in Australia could also lead the Tribunal to be unsatisfied in relation to your claims to fear persecution in China. If the Tribunal makes these findings it will not be satisfied about your persecution claims and may affirm the delegate's decision not to grant a protection visa. No complaint is made by the Appellant as to compliance with s 424A(1)(a) &#8212; it is accepted that " clear particulars " of information have been provided. Section 424A(1)(a) requires an applicant to be provided with " sufficient specificity " of the information to be relied upon. Language which fails to identify information with " sufficient specificity " and which fails to " unambiguously " set forth information may fail to comply with s 424A(1)(a): e.g. MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J. The argument for the Appellant is that the 28 July 2008 letter put him on notice that the information previously set forth in the letter could be used merely for the purpose of making a finding that the Appellant did not fear persecution as claimed. The contravention arose &#8212; so it was argued &#8212; because the letter did not state that the information could also be used for the purpose of making a finding as to credibility. The argument is rejected.
Case: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132
Outcome: cited
to a particular issue in the reasons for decision of a Tribunal may provide a basis upon which a conclusion may be reached that that issue was in fact addressed and considered during the course of a Tribunal hearing. But the difficulty in drawing an inference that an issue was not addressed because of the absence of any reference to that issue in the reasons for decision of a Tribunal is a difficulty that has been adverted to by the Full Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. When addressing a submission that an inference should be drawn that the Tribunal did not raise an issue with the appellant, Beaumont, Merkel and Hely JJ there observed: [21] We cannot accept this submission, for several reasons. For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this 'appeared' to be the case 'from the record of the [Tribunal] decision'. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appelant [ sic ] has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. Their Honours were obviously directing attention to the facts then before the Court. But the caution expressed as to the dangers in too readily drawing inferences from an incomplete factual foundation is to be heeded. The decision in NAOA has since been followed: NBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1132 at [31] per Conti J. The Full Court, it has also been said, " simply made its comments based on the particular facts of that case ": SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [32] , 102 ALD 598 at 606 per Rares J. In an appropriate case, inferences may be drawn from an account given by a Tribunal member: e.g. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [28] to [30] [2004] HCA 62 ; , 221 CLR 1 at 10 to 11 per McHugh, Gummow, Callinan and Heydon JJ. Whether an inference is or is not available must obviously depend upon the facts and circumstances of each individual case.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 , 228 CLR 294
Outcome: discussed
" object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it ": SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [50] , [2005] HCA 24 ; 228 CLR 294 at 312 per McHugh J. Subject to the qualifications and exceptions set forth, " the evident object of s 424A is that ... fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it ": [2005] HCA 24 at [118] , [2005] HCA 24 ; 228 CLR 294 at 331 per Gummow J. It was made clear in SAAP that the Tribunal commits jurisdictional error if it fails to comply with the requirements of s 424A. The purpose sought to be achieved by s 424A , it has also been recognised, is twofold: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. Branson, Finn and Bennett JJ there observed: [31] The obligation imposed on the Tribunal by s 424A relevantly had two aspects; first, to give the respondent particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (s 424A(1)(a)) and secondly, to ensure, as far as reasonably practicable, that the respondent understood why the information was relevant to the review (s 424A(1)(b)).
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1
Outcome: cited
for the Appellant resisted such a conclusion and submitted that the Tribunal's reasons did not disclose any finding as to " purpose ". He accepted that the Tribunal's reasons were not to be scrutinised in an " over-zealous " manner and with an " eye keenly attuned to the perception of error ": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 to 272, see also Kirby J at 291; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] , [2007] HCA 26 ; 96 ALD 1 at 9 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9.
Case: SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2006] FCA 648
Outcome: cited
is unnecessary to resolve a third contention advanced by the Minister. This contention was that s 91R(3) is not engaged where an applicant does not seek to rely on conduct in Australia to support a well-founded fear of persecution (cf SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] per Jacobson J; SZLQX v Minister for Immigration and Citizenship [2008] FCA 1286 at [21] per Jacobson J) or where evidence of conduct is adduced or called by an applicant ( SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [16] and [21] to [23] per Spender, Edmonds and Tracey JJ). The contention was that the present Appellant did not seek to rely upon the 1999 or 2000 conduct and did not adduce evidence of such conduct.
Case: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 , 104 ALD 22
Outcome: cited
for the Appellant accepts what must inevitably be common ground as between the parties. It is thus accepted that a party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Applied: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18], 190 ALR 543 at 548 to 549 per Hill, O'Loughlin and Tamberlin JJ; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33] , 104 ALD 22 at 30. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.