mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411
Outcome: considered
Mr Karp contends that what is obvious and relevant to the decision maker may be less so to the appellant, especially if the information is used adversely against him ( Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [141] [142]). Further, he contends, there is a requirement to disclose information known to the appellant if any adverse conclusion arrived at would not obviously be open on the known material ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2). The appellant must be given the opportunity to deal with adverse information that is credible, relevant and significant to seek to establish that it is not credible, not relevant or not sufficiently significant ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at [17] ). 46 The conclusion as to the absence of a racial basis for the looting and destruction of the appellant's family business in May 1998 impacts upon the Tribunal's characterisation of the events of September 1999 and its conclusion that ' even if there were a further riot, it is no more than speculation that ethnic Chinese might be its target because of their race and, even if they were, the chance is remote that [the appellant] may face serious harm during it '. It also impacts on the failure by the Tribunal to consider whether there had been a relevant change between May 1998 and September 1999 even in the context of a change in political leadership and policies. To the extent that the Tribunal relied upon evidence that some ethnic Chinese were not targeted because of their race but instead suffered harm in the context of a breakdown of law and order, that evidence was adverse information that was "credible, relevant and significant" in the sense discussed in VEAL at [16] to [17]. The Tribunal was obliged to give the appellant the opportunity to deal with it. Its failure to do so resulted in a denial of natural justice and jurisdictional error.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: cited
Mr Karp contends that what is obvious and relevant to the decision maker may be less so to the appellant, especially if the information is used adversely against him ( Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [141] [142]). Further, he contends, there is a requirement to disclose information known to the appellant if any adverse conclusion arrived at would not obviously be open on the known material ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2). The appellant must be given the opportunity to deal with adverse information that is credible, relevant and significant to seek to establish that it is not credible, not relevant or not sufficiently significant ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at [17] ).
Case: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141
Outcome: cited
Mr Karp, who appears for the appellant, acknowledges that mere illogical reasoning on the part of the Tribunal is not sufficient to attract jurisdictional error ( Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]). He points out, however, that a decision that was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds may be so infected ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59 at [34] [37]).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: cited
The appellant's application for a protection visa was filed prior to the commencement of s 422B of the Act. Accordingly, the appellants were entitled to be accorded natural justice at common law ( Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [139] ). 18 Two of the three reasons advanced by the Tribunal for its lack of satisfaction of a well-founded fear of persecution were based on independent evidence of "significant changes" in Indonesia since the appellant's departure. The Tribunal concluded that the appellant's fear, though genuine, was not well-founded. In its view, the chance of persecution was remote. 19 The amended notice of appeal asserts an obligation on the part of the Tribunal to put matters to the appellant to provide the opportunity for him to respond, including: &#8226; information that ' is already obviou s'; &#8226; information known to the appellant; &#8226; information that is credible, relevant and significant to the decision to be made, whether obvious or not; &#8226; any adverse conclusion which has been arrived at which would not obviously be open on the known material; and &#8226; country information in the reports relied on in the decision.
Case: Muin v Refugee Review Tribunal (S36 of 1999) [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: cited
The Minister contends that the substance, or "essential features" of each factor on which the decision turned were brought to the appellant's attention ( Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at [70] ). Mr Mitchell submits that it is apparent from the Tribunal's reasons that the appellant was given the opportunity to deal with the substance of the information which was credible, relevant and significant to the decision, with the possible exception of information that was obvious or favourable to or corroborative of the appellant's claims ( Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at [133] - [134] per McHugh J). Examples of obviousness of the constitutional protection of Catholicism and the population of Chinese Indonesians of the order of 5 million are given. The change in government is conceded not to be in this category but it is submitted that it was raised by the Tribunal with the appellant.
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Outcome: cited
In NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [136] [137], Allsop J (with whom Moore and Tamberlin JJ agreed) provided some elucidation of the analysis to be undertaken in dealing with an allegation of illogicality. As his Honour pointed out, perfect logicality is a standard not necessarily achieved in the reasoning process of many decision makers; indeed, illogicality may highlight the understanding of how an error occurred within jurisdiction. There must, of course, be a process of reasoning. 14 Mr Karp does not submit that the Tribunal decision was of the kind described by Allsop J in NADH , a decision that lacked reasoning. It cannot be said that the Tribunal could not or did not reach its conclusion by a process of reasoning. 15 It was not inevitable, logically, that because the May 1998 riots were directed towards the ethnic Chinese and the appellant was ethnically Chinese, that the destruction of his family's business in Jakarta was racially motivated. It cannot be said that the conclusion was so unreasonable that no reasonable person could have come to it. It was open to the Tribunal to conclude that, in the context of general lawlessness, the destruction of his salon was not based on his race. 16 The appellant has not established jurisdictional error on this ground.
Case: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539
Outcome: cited
The Minister contends that the substance, or "essential features" of each factor on which the decision turned were brought to the appellant's attention ( Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at [70] ). Mr Mitchell submits that it is apparent from the Tribunal's reasons that the appellant was given the opportunity to deal with the substance of the information which was credible, relevant and significant to the decision, with the possible exception of information that was obvious or favourable to or corroborative of the appellant's claims ( Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at [133] - [134] per McHugh J). Examples of obviousness of the constitutional protection of Catholicism and the population of Chinese Indonesians of the order of 5 million are given. The change in government is conceded not to be in this category but it is submitted that it was raised by the Tribunal with the appellant.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59
Outcome: cited
Mr Karp, who appears for the appellant, acknowledges that mere illogical reasoning on the part of the Tribunal is not sufficient to attract jurisdictional error ( Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]). He points out, however, that a decision that was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds may be so infected ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59 at [34] [37]).
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S 154/2002 (2003) 201 ALR 437
Outcome: cited
Subject to one additional matter, the Tribunal did put to the appellant the key factors and critical issues on which that aspect of the decision was ultimately based and explained why they were important. The Tribunal was not obliged to put to the appellant the conclusions drawn from those facts or its reasoning ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ and at [85] [86] per Kirby J). It was not obliged to provide the appellant with the specific documents recording the information where the substance of the information was provided ( VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [28] per Allsop J with whom Gyles and Conti JJ agreed; SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19] to [20]). 39 The Tribunal member did not suggest to the appellant that it doubted that the destruction of his family's business was due to it being owned by a Chinese family (cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [43]). She did not suggest to him that ethnic Chinese were not targeted in the 1998 May riots because of their race. To the contrary, she suggested that this part of his claim was accepted. 40 The Tribunal accepted in its decision that ' some ethnic Chinese suffered harm amounting to persecution during the 1998 riots ' and that ' if there were a real chance that an individual might face [such harm] during riots or at any other time, because of his or her race, that person would come within the definition of a refugee '. However, it drew a distinction between those persons and the appellant. It found that the looting and destruction of his business occurred not because the business was owned by a Chinese family, but in the context of a breakdown of law and order and widespread rioting affecting many shop-front businesses. The Tribunal said that it was not satisfied that the appellant was targeted because of his race. 41 The Minister submits that the Tribunal accepted the appellant's subjective fear arising during and subsequent to the May 1998 riots; that was not contradicted in the Tribunal's findings. The Minister contends that the Tribunal was not satisfied, however, that the looting of the appellant's shop was for reasons of his or his family's ethnicity. That is, the Tribunal accepted the appellant's subjective fears but did not accept that they were objectively well-founded at the time of the Tribunal decision.
Case: Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
Mr Karp contends that what is obvious and relevant to the decision maker may be less so to the appellant, especially if the information is used adversely against him ( Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [141] [142]). Further, he contends, there is a requirement to disclose information known to the appellant if any adverse conclusion arrived at would not obviously be open on the known material ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2). The appellant must be given the opportunity to deal with adverse information that is credible, relevant and significant to seek to establish that it is not credible, not relevant or not sufficiently significant ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at [17] ).
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Outcome: cited
The observations of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 are apposite. In SZBEL the Tribunal did not challenge what the appellant said, express reaction or invite him to amplify those matters that the Tribunal later found to be "implausible' (at [3]). Where an issue arose at the Tribunal hearing that was not an issue before the Delegate, the High Court held that it was incumbent on the Tribunal to identify that issue and to tell the applicant of it (at [35]). The applicant was entitled to be on notice that his account on a particular aspect was an issue arising in relation to the decision under review (at [42]). Where the Delegate had not based his decision on an aspect, the Delegate's reasons did not indicate that that aspect of the account was in issue and the Tribunal did not identify the aspect as important and did not challenge what the appellant said, there is a denial of procedural fairness (at [42]-[44]; [47]). 48 Had the appellant been given an opportunity to respond to the issue of the cause of destruction of the salon in 1998, the Tribunal may have concluded that the looting of businesses in the Chinatown district of Jakarata did have a racial nexus, and that if this were to reoccur, as it apparently had in Bandung, the applicants could suffer harm serious enough to amount to persecution. 49 The Tribunal stated that its failure to be satisfied that the appellant had a well-founded fear of persecution was for three reasons. The second of these was that there had been significant changes since the appellant left and, even if there were a further riot, the chance was remote that the appellant would face serious harm. This, on its face, is a separate basis for its conclusion that there was no well-founded fear of persecution. I am satisfied that the Tribunal did put to the appellant the changes that had generally taken place in Indonesia after May 1998. However, this second reason was inextricably linked to the Tribunal's conclusion that, while demonstrations in September 1999 involved looting of businesses in Chinatown, ethnic Chinese were not then targeted because of their race and as such, it was speculation that ethnic Chinese might be targeted in the future.
Case: SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215
Outcome: cited
Subject to one additional matter, the Tribunal did put to the appellant the key factors and critical issues on which that aspect of the decision was ultimately based and explained why they were important. The Tribunal was not obliged to put to the appellant the conclusions drawn from those facts or its reasoning ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ and at [85] [86] per Kirby J). It was not obliged to provide the appellant with the specific documents recording the information where the substance of the information was provided ( VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [28] per Allsop J with whom Gyles and Conti JJ agreed; SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19] to [20]).
Case: VAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 117
Outcome: cited
That finding, in turn, could have affected the conclusion as at the date of the Tribunal decision, that changes in Indonesia meant that, it there were a riot, the chance of harm was remote. If there has been a denial of natural justice, there is jurisdictional error where, as here, the ultimate conclusion could have been affected ( VAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 117 at [80] [81] citing Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [51] [52] and [104]). 53 Accordingly the appeal should be allowed. 54 The Federal Magistrate made a recommendation to the Minister in clear terms (at [34] [35]). His Honour understood that it was merely a recommendation but included reference to it in his reasons and in his orders. I was informed at the hearing that, apart from drafting a letter that was not forwarded to the Minister, no action was taken to give effect to that recommendation. 55 I do not approve that course of action. I would have thought that the solicitors had an obligation, at the least, to bring that recommendation to the attention of their client. This obligation is, in my view, analogous to the obligation to pass on to a client any matter requiring further instructions. This would apply to a recommendation by a judicial offer where the party is a holder of public office. 56 I am informed that guidance issued by the Minister provides that it is inappropriate for the Minister to consider exercising her discretion under s 417 of the Act where there is migration-related litigation that has not been resolved. The appeal lodged from the decision of Scarlett FM resulted in the suspension of further consideration of the referral of this matter to the Minister by the Department. I am also informed that the Department has expedited its assessment of the appellant's case. That does not affect the obligation on the part of the solicitors to pass to the client the Federal Magistrate's recommendation.
Case: VHAP v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559
Outcome: applied
Subject to one additional matter, the Tribunal did put to the appellant the key factors and critical issues on which that aspect of the decision was ultimately based and explained why they were important. The Tribunal was not obliged to put to the appellant the conclusions drawn from those facts or its reasoning ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ and at [85] [86] per Kirby J). It was not obliged to provide the appellant with the specific documents recording the information where the substance of the information was provided ( VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [28] per Allsop J with whom Gyles and Conti JJ agreed; SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19] to [20]).
Case: Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15 ; (1999) 17 ACLC 467
Outcome: cited
The scheme of Part 5.4 of the Corporations Act is to enable quick resolution of the issue of solvency and the determination of whether the company should be wound up, without the interposition of disputes about debts unless they are raised promptly ( David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 at 270). The Corporations Act provides that disputes about the existence of debts demanded in a statutory demand are to be resolved through the process of applying to set aside the statutory demand ( Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15 ; (1999) 17 ACLC 467 at [38] ).
Case: D.A.G. International Pty Ltd v D.A.G. International Group Pty Ltd [2005] NSWSC 1036
Outcome: referred to
The exercise of the discretion under s 459S(1) does not lead to the setting aside of the statutory demand, and therefore does not remove the presumption of insolvency which arises under s 459C(2)(a). If the Court grants leave, its task is to deal with the proceedings for winding up, rather than cutting away the demand which is their substratum. The overall question of solvency is the critical issue (see, for example, D.A.G. International Pty Ltd v D.A.G. International Group Pty Ltd [2005] NSWSC 1036 at [5] per Brereton J). 32 In my opinion, the grounds sought to be relied upon by the respondent are those which could have been relied on in application to set aside the statutory demand. As such, for these arguments to be raised the Court must be satisfied that they are material to the present solvency of the defendant company. For the reasons set out in [28] and [35], it has not been demonstrated by the defendant that these grounds are relevant to the solvency of the company. 33 Leave to raise the grounds listed above is refused.
Case: David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265
Outcome: referred to
The scheme of Part 5.4 of the Corporations Act is to enable quick resolution of the issue of solvency and the determination of whether the company should be wound up, without the interposition of disputes about debts unless they are raised promptly ( David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 at 270). The Corporations Act provides that disputes about the existence of debts demanded in a statutory demand are to be resolved through the process of applying to set aside the statutory demand ( Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15 ; (1999) 17 ACLC 467 at [38] ).