mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: referred to
The appellants also relied on the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (' SZBEL '). The decision in SZBEL is not especially relevant to the present case, although, taken in the broad, SZBEL emphasizes that conformity with s 360 requires the provision of a real, as opposed, to merely a formal opportunity to give evidence and present submissions. In SZBEL at 600, the Court noted that the Act provides that the applicant for review is to be given an opportunity to be heard on "the issues arising in relation to the decision under review": compare ss 425(1) and 360(1). The Court went on to say that these issues were to be "identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker . . . but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons": see SZBEL at 600. Thus, said the Court, the issues arising on review will ordinarily be the issues that the original decision-maker identified "as determinative against the applicant", plus any other issues identified by the Tribunal: see SZBEL at 600. The Court held that, in the circumstances of the case, the review applicant was not on notice that two aspects of his account were in issue on the review because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues. On this basis, the Court held that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about these determinative issues.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: referred to
Other authorities figuring in the appellants' submissions make the same essential point that, where the Tribunal is not minded to make a decision on the papers in a review applicant's favour, s 360 requires that he or she have a real opportunity to present evidence and submissions to the Tribunal. These other authorities included Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (' SCAR ') and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 (' SZFDE '). SZFDE was a case about fraud and is therefore a different case from the present. Whatever the correct approach to the decision in SCAR , SCAR also raises different issues from the present. The Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari for want of procedural fairness. Unknown to the Tribunal, on account of his father's recent death, the review applicant was suffering from extreme distress, for which he had received medication. The Full Court had regard to the obligation that s 425(1) imposed and said, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture".
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SZFDE [2006] FCAFC 142
Outcome: referred to
Other authorities figuring in the appellants' submissions make the same essential point that, where the Tribunal is not minded to make a decision on the papers in a review applicant's favour, s 360 requires that he or she have a real opportunity to present evidence and submissions to the Tribunal. These other authorities included Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (' SCAR ') and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 (' SZFDE '). SZFDE was a case about fraud and is therefore a different case from the present. Whatever the correct approach to the decision in SCAR , SCAR also raises different issues from the present. The Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari for want of procedural fairness. Unknown to the Tribunal, on account of his father's recent death, the review applicant was suffering from extreme distress, for which he had received medication. The Full Court had regard to the obligation that s 425(1) imposed and said, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture".
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-6
Outcome: referred to
Section 426A does not oblige the Tribunal to reschedule a hearing but does not prevent it from doing so: s 426A(2). Where the Tribunal accedes to a request to reschedule the hearing it obviously needs to notify an applicant of the changed date. The Act does not specify the extent of notice that must be given in these circumstances. However, given the Tribunal's obligation to act reasonably and in accordance with the requirements of procedural fairness in exercising its powers ( Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at [40] and see Deane J's discussion in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-6), the rescheduling, just as much as the original invitation under s 425(1), must not be a 'hollow shell or an empty gesture': Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293 at [33] . It follows that an applicant must be given notice of the rescheduled date that is reasonable in all the circumstances.
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: referred to
Section 426A does not oblige the Tribunal to reschedule a hearing but does not prevent it from doing so: s 426A(2). Where the Tribunal accedes to a request to reschedule the hearing it obviously needs to notify an applicant of the changed date. The Act does not specify the extent of notice that must be given in these circumstances. However, given the Tribunal's obligation to act reasonably and in accordance with the requirements of procedural fairness in exercising its powers ( Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at [40] and see Deane J's discussion in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-6), the rescheduling, just as much as the original invitation under s 425(1), must not be a 'hollow shell or an empty gesture': Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293 at [33] . It follows that an applicant must be given notice of the rescheduled date that is reasonable in all the circumstances.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293
Outcome: referred to
Section 426A does not oblige the Tribunal to reschedule a hearing but does not prevent it from doing so: s 426A(2). Where the Tribunal accedes to a request to reschedule the hearing it obviously needs to notify an applicant of the changed date. The Act does not specify the extent of notice that must be given in these circumstances. However, given the Tribunal's obligation to act reasonably and in accordance with the requirements of procedural fairness in exercising its powers ( Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at [40] and see Deane J's discussion in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-6), the rescheduling, just as much as the original invitation under s 425(1), must not be a 'hollow shell or an empty gesture': Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293 at [33] . It follows that an applicant must be given notice of the rescheduled date that is reasonable in all the circumstances.
Case: NASB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 24
Outcome: applied
Ms Henderson pointed out that no objection had been made in that court to the appellant making the unsworn statements and no such objection was raised on the appeal. To the extent that the proposed evidence might add to what was said to the Federal Magistrate, Ms Henderson objected that the conditions stated in NASB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 24 had not been met. Those conditions, as set out at [42], are: 'first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different.' In my view neither of these conditions was met and I therefore refused to admit the additional evidence. 25 For the reasons given above the appeal must be dismissed with costs. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 23 May 2006 Counsel for the Appellant: Mr B Zipser (pro bono) Counsel for the First Respondent: Ms R Henderson Solicitor for the First Respondent: Phillips Fox Date of Hearing: 10 May 2006 Date of Judgment: 23 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/600.html
Case: SZBAZ v Minister for Immigration [2004] FMCA 790
Outcome: referred to
His Honour's decision was grounded in practical considerations, in particular the risk that the Tribunal's process would be 'unreasonably thwarted' by delays caused by a strict requirement that an applicant be given 14 days' notice of each rescheduled hearing, regardless of the reason for that rescheduling. Quite apart from such practical considerations however, it seems to me that there is a substantial difference between an initial invitation to a hearing which names a date and correspondence in which the date of such a hearing is rescheduled. The latter is a variation of the initial invitation and not a new invitation. Hence this is not a case of 'partial compliance' with a statutory obligation; see the comments of McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 at [77] . The section may reasonably be interpreted as applying to an initial invitation and not to a notification of a date that is rescheduled at the applicant's request. It may be, as Barnes FM observed in SZBAZ v Minister for Immigration [2004] FMCA 790 , that the s 425A notice requirements may apply to a hearing rescheduled on the Tribunal's initiative but that is not the case here and I do not need to consider the point.
Case: SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493
Outcome: referred to
The question was not answered in SZDQO which dealt with the more specific question of the application of s 425A(3) . The answer depends on the extent of the 'matters' with which Division 4 of Part 7 of the Act deals an issue on which there is some difference of opinion in this Court; see Branson J's analysis in SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [12] - [16] . The view I have formed about the notice of the rescheduled hearing that was given to the appellant is such that I do not need to explore this difference of opinion or what limits might be imposed in Division 4. This is because I am satisfied that, once it is accepted that s 425A(3) does not apply, the highest that the Tribunal's obligation to give notice of the rescheduled hearing date can be put is that the notice must, in all the circumstances, be reasonable. I am satisfied that the notice given to the appellant met this standard.
Case: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 , 215 CLR 518
Outcome: followed
Proceedings before the Tribunal, it will be recalled, are but part of an administrative decision-making process and not adversarial litigation. An administrative determination by one Tribunal thus results in no conclusive determination binding on subsequent Tribunals called upon to make a subsequent decision, even in respect to the same claim. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 , 215 CLR 518 at 540 1 Gummow and Hayne JJ explained the position as follows: [71] In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process [Mahon v Air New Zealand Ltd [1984] AC 808 at 814; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 282]. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision -- in this case the grant of a protection visa -- and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision. See also: NBKM v Minister for Immigration &amp; Citizenship [2007] FCA 1413 at [25] [28] per Siopsis J.
Case: NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 , 214 ALR 264
Outcome: followed
The second Ground of Appeal should also be rejected. A claim of reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. And the question as to whether a reasonable apprehension of bias has been " firmly established " must also take into account the manner in which the legislature has directed the Tribunal to carry out its functions, including the inquisitorial nature of the review being undertaken: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] [21], [2004] FCAFC 328 ; 214 ALR 264 at 268 9 per Allsop J (Moore and Tamberlin JJ agreeing).
Case: NBKM v Minister for Immigration &amp; Citizenship [2007] FCA 1413
Outcome: considered
Proceedings before the Tribunal, it will be recalled, are but part of an administrative decision-making process and not adversarial litigation. An administrative determination by one Tribunal thus results in no conclusive determination binding on subsequent Tribunals called upon to make a subsequent decision, even in respect to the same claim. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 , 215 CLR 518 at 540 1 Gummow and Hayne JJ explained the position as follows: [71] In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process [Mahon v Air New Zealand Ltd [1984] AC 808 at 814; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 282]. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision -- in this case the grant of a protection visa -- and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision. See also: NBKM v Minister for Immigration &amp; Citizenship [2007] FCA 1413 at [25] [28] per Siopsis J.
Case: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 , 42 AAR 297
Outcome: followed
In some circumstances it may be prudent for a Tribunal to record why it departs from findings previously made by a differently constituted Tribunal. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J observed, albeit in a different context (at 639): Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. Appl'd: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 42 AAR 297 per Downes J. In the present context it may be that there is no " inconsistency " as such, as opposed to different conclusions being reached upon the basis of different material. But it may nevertheless remain desirable to explain a departure from earlier findings. And, in some circumstances, such an obligation may be imposed upon the Refugee Review Tribunal by s 430(1)(b) and (c) of the 1958 Act, namely the requirement for a Tribunal to prepare a written statement that " sets out the reasons for the decision " and its " findings on any material questions of fact ". But there can be no universal obligation to do so. Departures from findings previously made may arise (for example) simply by reason of the evidence being considered being different or by reason of a different assessment being made as to an applicant's credibility. In the present appeal there was further evidence not previously called before either of the first two Tribunals.
Case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Outcome: followed
In some circumstances it may be prudent for a Tribunal to record why it departs from findings previously made by a differently constituted Tribunal. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J observed, albeit in a different context (at 639): Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. Appl'd: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 42 AAR 297 per Downes J. In the present context it may be that there is no " inconsistency " as such, as opposed to different conclusions being reached upon the basis of different material. But it may nevertheless remain desirable to explain a departure from earlier findings. And, in some circumstances, such an obligation may be imposed upon the Refugee Review Tribunal by s 430(1)(b) and (c) of the 1958 Act, namely the requirement for a Tribunal to prepare a written statement that " sets out the reasons for the decision " and its " findings on any material questions of fact ". But there can be no universal obligation to do so. Departures from findings previously made may arise (for example) simply by reason of the evidence being considered being different or by reason of a different assessment being made as to an applicant's credibility. In the present appeal there was further evidence not previously called before either of the first two Tribunals.
Case: Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: followed
The second Ground of Appeal should also be rejected. A claim of reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. And the question as to whether a reasonable apprehension of bias has been " firmly established " must also take into account the manner in which the legislature has directed the Tribunal to carry out its functions, including the inquisitorial nature of the review being undertaken: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] [21], [2004] FCAFC 328 ; 214 ALR 264 at 268 9 per Allsop J (Moore and Tamberlin JJ agreeing).
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437
Outcome: followed
The second Ground of Appeal should also be rejected. A claim of reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. And the question as to whether a reasonable apprehension of bias has been " firmly established " must also take into account the manner in which the legislature has directed the Tribunal to carry out its functions, including the inquisitorial nature of the review being undertaken: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] [21], [2004] FCAFC 328 ; 214 ALR 264 at 268 9 per Allsop J (Moore and Tamberlin JJ agreeing).
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 81 ALJR 1190
Outcome: followed
Neither the witness's evidence nor the letter constituted " information " for the purposes of s 424A of the 1958 Act: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] , [2007] HCA 26 ; 81 ALJR 1190. And, even if it did constitute " information ", the evidence and the letter fell within the exception in s 424A(3)(b), namely " information ... that the applicant gave for the purpose of the application ": cf SZIAT v Minister for Immigration &amp; Citizenship [2008] FCA 766 at [39] per Gordon J.