mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Rocter Tanks Pty Ltd v Adam [2001] SASC 196
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Silveira v Australian Institute of Management [2001] FCA 1358
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: followed
The third issue raised by the appellant claims that the Tribunal erred in not identifying to him the conflict between the appellant's statement dated 11 December 2002 and the submissions prepared for him in 2005 relating to his claims. Such conflict was obvious on the face of the documents and arose after the Minister's decision. As such the Tribunal was entitled to rely on such issue in making its finding without expressly informing the appellant that it would be relying on such inconsistencies in reaching its decision: see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590- 591. 26 It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant's responses to the Tribunal's invitation to comment addressed those issues. In SZBEL [2006] HCA 63 ; 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice .
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
The fourth issue raised by the appellant claims that the Tribunal failed to tell the appellant that it was not satisfied that corruption in the Ukraine would adversely impact on the appellant for a Convention reason. The claim of corruption was raised by the appellant in response to the Tribunal's invitation to comment on the change in the political climate in the Ukraine. Because of the inadequacy of the appellant's explanation which might provide a link between the alleged corruption and his persecution, there was no obligation on the Tribunal to specifically state to the appellant that it might reject his assertion as a basis for his claim to be a refugee: see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541
Outcome: distinguished
Before the Court, the respondent relied upon the decision in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 at 553 in support of its submission that the Tribunal was not required to hold a hearing. However the facts in that decision are distinguishable since different statutory provisions applied. The Tribunal member had resigned after the hearing and before delivering any decision. Pursuant to s 428 of the Act, another person may be authorised to hear evidence in such circumstances. The statutory provision specifically authorised the continuation of the review by another person. In the present proceedings, the decision of the first Tribunal was set aside due to jurisdictional error and the proceedings were remitted for determination according to law. No question arises of another person continuing the same review as is envisaged by s 428 of the Act. 31 Despite the time limit fixed by the first s 424A(1) letter, the Tribunal sent its second s 424A(1) letter extending the time for submission of further evidence and, due to its own omission from such letter wrote again on 10 August 2005 extending the time for compliance to 24 August 2005. The requested information was received by the Tribunal on 23 August 2005 within the time limit set by the Tribunal. Accordingly the Court is unable to agree with her Honour that the appellant failed to comply with the time limit imposed by the Tribunal and that s 424C(1) of the Act applied to disentitle the appellant from a hearing. 32 By sending the first and second s 424A(1) letters it was clear that the Tribunal required additional information to enable it to determine the application before it. If after the receipt of such further information the Tribunal was still unable to make a decision favourable to the appellant it had an obligation pursuant to s 425 of the Act to invite the appellant to appear before it. The fact that a previous hearing was held did not discharge this obligation in view of the fact that the Tribunal had requested further information. The Tribunal made its decision in the absence of making further inquiry of Mr Slater as it was invited to do, and without inviting the appellant to appear at a hearing.
Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: followed
The appellant also submitted that the second Tribunal made its decision based upon documents provided to the first Tribunal hearing. However, there is no reason why documents provided in respect of the first Tribunal hearing could not be used in the second hearing. The second Tribunal's decision clearly indicates that it had sought additional information and considered the further submissions made by the appellant's agent in response. The Tribunal's duty to review the Minister's decision under s 414(1) of the Act continues until one of the outcomes described in s 415(2) of the Act is reached: see Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [26] . 20 Whilst the appellant made no submissions directly relating to the grounds of appeal referred to in his Notice of Appeal, the Court will nevertheless consider such grounds. 22 As a second issue, the appellant claimed that the Tribunal failed to inform him that one of the reasons that it would find an absence of persecution was because the appellant's letter sent to the Tribunal following the refusal of the Minister to grant a visa dated 20 April 2000 did not refer to persecution. The appellant was not entitled to assume that the issues considered by the Minister to be critical were the only issues of concern to the Tribunal. The Tribunal was empowered to consider matters in addition to those raised before the Minister, as requested by the appellant, and to make a decision upon them: see Applicant NAFF of 2002 221 CLR [22]-[25]. 34 There is a further consideration. The original decision of the Tribunal, having been set aside had 'no operative effect': see SZILQ [2007] FCA 942. The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. The Tribunal's duty required it to seek further information under s 424A(1) and in the absence of a finding in favour of the appellant was required to invite the appellant ' to appear before the Tribunal to give evidence and present arguments relating to the issuing arising in relation to the decision under review' pursuant to s 425 of the Act: see Applicant NAFF of 2002 221 CLR at [26] [27].
Case: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539
Outcome: referred to
The fourth issue raised by the appellant claims that the Tribunal failed to tell the appellant that it was not satisfied that corruption in the Ukraine would adversely impact on the appellant for a Convention reason. The claim of corruption was raised by the appellant in response to the Tribunal's invitation to comment on the change in the political climate in the Ukraine. Because of the inadequacy of the appellant's explanation which might provide a link between the alleged corruption and his persecution, there was no obligation on the Tribunal to specifically state to the appellant that it might reject his assertion as a basis for his claim to be a refugee: see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909
Outcome: referred to
It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant's responses to the Tribunal's invitation to comment addressed those issues. In SZBEL [2006] HCA 63 ; 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice .
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
Barnes FM held that the Tribunal was correct in determining that pursuant to ss 424C(1) and 425 (3) of the Act the appellant lost his entitlement to appear before the Tribunal because the appellant failed to respond to the first s 424A(1) letter and relied upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [19] .
Case: SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834
Outcome: referred to
The fourth issue raised by the appellant claims that the Tribunal failed to tell the appellant that it was not satisfied that corruption in the Ukraine would adversely impact on the appellant for a Convention reason. The claim of corruption was raised by the appellant in response to the Tribunal's invitation to comment on the change in the political climate in the Ukraine. Because of the inadequacy of the appellant's explanation which might provide a link between the alleged corruption and his persecution, there was no obligation on the Tribunal to specifically state to the appellant that it might reject his assertion as a basis for his claim to be a refugee: see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .
Case: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100
Outcome: referred to
It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant's responses to the Tribunal's invitation to comment addressed those issues. In SZBEL [2006] HCA 63 ; 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice .
Case: SZILQ v Minister for Immigration and Citizenship [2007] FCA 942
Outcome: distinguished
In SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 the appellant sought a second Tribunal hearing after the Tribunal's initial decision had been quashed and the proceedings had been remitted to the Tribunal. The appellant provided material to the second Tribunal which included a testimonial from a local pastor attesting to the appellant's religious observance in Australia. The Tribunal denied the appellant's request for a further hearing. In an appeal to this Court from a decision of the Federal Magistrates Court which affirmed the Tribunal's decision to refuse to grant a protection visa to the appellant, the appellant claimed that the Tribunal had not complied with its obligations under s 425 of the Act insofar as that obligation related to the Tribunal's consideration of s 91R(3). The Court upheld the appeal, finding that the right of the appellant to satisfy his onus of proof under s 91R(3) was not afforded. At [32] the Court said: The RRT took the view, following the Full Court decision in SZEPZ, that it was not necessary to conduct a further oral hearing because, as the review was a continuing one despite the earlier decision being set aside, a hearing had already been held. However, that mistakes the nature of the obligation under s 425(1). The RRT itself found it necessary to take a further step to comply with s 424A after the earlier decision was set aside. An additional element then emerged, in respect of which the appellant had not been given an opportunity to give evidence and present arguments at an oral hearing. In those circumstances the obligations under s 425(1) were not fully met. 34 There is a further consideration. The original decision of the Tribunal, having been set aside had 'no operative effect': see SZILQ [2007] FCA 942. The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. The Tribunal's duty required it to seek further information under s 424A(1) and in the absence of a finding in favour of the appellant was required to invite the appellant ' to appear before the Tribunal to give evidence and present arguments relating to the issuing arising in relation to the decision under review' pursuant to s 425 of the Act: see Applicant NAFF of 2002 221 CLR at [26] [27].
Case: Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490
Outcome: cited
the Earlier Reasons, I referred (at [86]) to State Bank of New South Wales v Brown 38 ACSR 715 and Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294. In The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602 Austin J referred to these cases and to Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 ( TJF EBC ) and identified in the following passage (at [70]) considerations to which regard should be had under s 564: As those cases point out, s 564 itself draws attention to the risk assumed by the funding creditor. It is therefore necessary to address the extent and nature of the risk that the funded recovery action will fail, and the extent of any consequent risk that the funds made available for the litigation might be irrecoverable. It appears from Spigelman CJ's judgment in the Brown case, at [40], and Brownie J's observations in the Household Financial Services case (at 296 7), that one has regard to factors including: whether the amounts involved are small; the value recovered; the size of the funding creditor's debt compared with other debts; the proportion that the funding creditor's expenditure bears to the amount recovered; whether the money advanced by the funding creditor has been refunded; whether other unsecured creditors oppose the distribution proposed to the funding creditor; whether other creditors have been given the opportunity to join in the funding and have failed to do so; and the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered. ... In TJF EBC , Barrett J gave the funding creditor an advantage by stipulating that it should receive in priority to all other creditors 80% of the funds remaining for distribution to creditors in the winding up after allowing for priority claims under s 556(1) , with the remaining 20% being paid to other creditors.