mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101
Outcome: applied
Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101 at [34] , Marshall and Lander JJ said that s 39(1) was attracted if two things were apparent: "First, the documents must be relevant. Secondly, [the tribunal] must be proposing to have regard to the documents for the purpose of reaching a decision in the proceedings." There, the tribunal had referred to five previous decisions of the tribunal in which passages from certain documents were either set out or summarised. Marshall and Lander JJ said there was nothing to suggest that the tribunal failed to comply with s 39(1) merely by referring to a previous (tribunal) decision. They concluded that the previous decisions did not play any part in the tribunal reaching its decision in the matter: Scorgie [2008] FCAFC 101 at [41] . The Full Court approved ( Scorgie [2008] FCAFC 101 at [42] , [67] and [71]) of what the trial judge, Flick J, had said as to the position at common law ( Scorgie v Minister for Immigration and Citizenship [2007] 47 AAR 314 at [7]), namely that a denial of procedural fairness would not be established simply because a decision-maker had referred to evidence given in other proceedings in which he or she had been involved. He said that denial of procedural fairness may be made out if the decision-maker went beyond simply referring to evidence in other proceedings and sought to rely upon that evidence or conclusions previously reached without affording an affected party an opportunity to make submissions.
Case: Shepherd v Felt &amp; Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359
Outcome: distinguished
Minister also sought to draw an analogy with stamp duty legislation that prohibited the admission into evidence of an unstamped instrument but gave the instrument, once duly stamped, its full force and effect, relying on Shepherd v Felt &amp; Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359 at 383 per Dixon J. I reject this argument. First, stamp duty legislation, ordinarily, does not affect liberty of individuals or fundamental human rights. Secondly, that legislation suspends, conditionally, the operation of an existing instrument only when it is sought to be put into evidence. I do not consider that generalised references to stamp duty legislation assist in construing item 7. The Parliament enacted the 2008 amendments knowing that both the tribunal and the Courts would have made decisions affecting visas purportedly cancelled by one of the two classes of decision for which item 7 provided. Yet, the 2008 amendments did not address curing any error made by the tribunal in arriving at its decision. Nor did the 2008 amendments validate any decision of the tribunal. The liberty of an individual is at stake. The Parliament did not express, in unambiguous and clear language, its intention to remove the accrued right of persons in the position of Mr Toro Martinez to treat the decision of the tribunal as no decision at all. I am of opinion that the tribunal's decision should be quashed and a writ of mandamus issued to command it to perform its function of review according to law. Ground 2 The essence of the second ground is that the tribunal failed to have regard to or consider the evidence of Mr Toro Martinez's daughter and a departmental assessment relating to conditions in Columbia concerning the effect on her, were the visa to be cancelled. The tribunal did not make any reference in its reasons to an interview given by the daughter to the Department in June 2001 or to her letter of July 2007. The only evidence of the daughter to which the tribunal referred was her letter of 15 April 2008. The tribunal used the latter letter and her failure to refer to significant matters in it (which the daughter however had said in the 2001 interview and 2007 letter) in arriving at two important findings. Nor did the tribunal refer in its decision to the international obligations and humanitarian concerns assessment that it would be unreasonable to expect the daughter to depart the relative safety of Australian society and accompany her father to Columbia.
Case: SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298
Outcome: discussed
Honours pointed out that a requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. In SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 at [25] Tamberlin J said that a failure by the Refugee Review Tribunal in its reasons to refer to, consider, or give reasons for rejection of documents which were strongly corroborative of an applicant's claim constituted a jurisdictional error.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609
Outcome: applied
my opinion, the tribunal used the two documents containing information adversely for Mr Toro Martinez, contrary to its obligations under s 39(1) and at common law. However, I am satisfied that no useful result would ensue from the grant of relief on this ground since Mr Toro Martinez cannot complain of the tribunal's ultimate finding that the evidence did not suggest that his condition was acute or life threatening and did not show that appropriate drugs for one of his problems and treatment for the other were unobtainable in Columbia: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at 618-619 [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. I am grateful for the assistance I received from counsel for the parties and, in particular, for the willingness of counsel to act for Mr Toro Martinez pursuant to Order 80 of the Federal Court Rules . I am of opinion that Mr Toro Martinez is entitled to succeed in these proceedings. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Honourable Justice Rares. Associate: Dated: 21 May 2009 Counsel for the Applicant: JAC Potts (pro bono) Counsel for the First Respondent: R Francois Solicitor for the First Respondent: Clayton Utz Date of Hearing: 18 March 2009 Date of Judgment: 21 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/528.html
Case: SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1
Outcome: cited
finding is the province of the tribunal. Ordinarily, an error of fact by the tribunal will not constitute a jurisdictional error, let alone an error of law. There is no error of law in simply making a wrong finding of fact: Enfield City v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Mr Toro Martinez accepted that position. However, he argued that the tribunal's conclusion that he would face no serious danger of personal harm by returning to Columbia was not a finding that the tribunal could make on any fair reading of the totality of the material on which it was based. He relied on the principle that if a decision-maker made a finding that was a critical step in arriving at its ultimate conclusion, but had no evidence to support it, the finding may well constitute a jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 at 407 [19] per Mansfield, Selway and Bennett JJ; SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] per Greenwood J; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 at 12 [42] per Flick J.
Case: SZDTZ v Minister for Immigration and Citizenship (2007) FCA 1824
Outcome: cited
finding is the province of the tribunal. Ordinarily, an error of fact by the tribunal will not constitute a jurisdictional error, let alone an error of law. There is no error of law in simply making a wrong finding of fact: Enfield City v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Mr Toro Martinez accepted that position. However, he argued that the tribunal's conclusion that he would face no serious danger of personal harm by returning to Columbia was not a finding that the tribunal could make on any fair reading of the totality of the material on which it was based. He relied on the principle that if a decision-maker made a finding that was a critical step in arriving at its ultimate conclusion, but had no evidence to support it, the finding may well constitute a jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 at 407 [19] per Mansfield, Selway and Bennett JJ; SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] per Greenwood J; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 at 12 [42] per Flick J.
Case: SZFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402
Outcome: cited
finding is the province of the tribunal. Ordinarily, an error of fact by the tribunal will not constitute a jurisdictional error, let alone an error of law. There is no error of law in simply making a wrong finding of fact: Enfield City v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Mr Toro Martinez accepted that position. However, he argued that the tribunal's conclusion that he would face no serious danger of personal harm by returning to Columbia was not a finding that the tribunal could make on any fair reading of the totality of the material on which it was based. He relied on the principle that if a decision-maker made a finding that was a critical step in arriving at its ultimate conclusion, but had no evidence to support it, the finding may well constitute a jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 at 407 [19] per Mansfield, Selway and Bennett JJ; SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] per Greenwood J; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 at 12 [42] per Flick J.
Case: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23
Outcome: applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, Mason J explained that in the absence of any statutory indication of the weight to be given to various considerations, it was generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising a statutory power. But he said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no importance. Mason J cautioned that the preferred ground on which that judicial power was to be exercised was that the decision was "manifestly unreasonable". I discussed the principles applicable to a statutory duty of, or requirement for, a decision-maker to take into account or to have regard to factors in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 at [103] - [112] . When the expression "regard must be had to" or like expressions are used in a statute in respect of a particular criterion or factor to be considered by a decision-maker, he or she is bound to treat such a factor as a central or fundamental element in the making of the relevant decision: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobson, Lander and Foster JJ applying Telstra [2008] FCA 1758 at [103] - [112] .
Case: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106
Outcome: followed
long line of authority in this Court has held that the tribunal has jurisdiction to review a purported decision, even where it is clear that the decision of the original decision-maker was affected by a jurisdictional error: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited [1979] FCA 21 ; (1979) 41 FLR 338 at 342 344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration [2004] FCAFC 248 ; (2004) 139 FCR 344 at 352-354 [28] - [32] per Finn, Mansfield and Gyles JJ. The tribunal has power to cure a defect in the delegate's decision once the tribunal's jurisdiction has been invoked by an application for review: Zubair 139 FCR at 354. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 116 per Mason J. That being so, although the Minister's delegate's decision has been validated by item 7, the tribunal is yet to perform its function of review of that decision in accordance with law. By applying to the tribunal before the 2008 amendment came into force, a person who then invoked a challenge to the Minister's or delegate's decision under s 501(2) elected to treat that decision as valid, though erroneous, and to have the tribunal exercise the power, in preference to challenging the decision in judicial review proceedings: Twist 136 CLR at 116 per Mason J. And the tribunal could have "cured" the defect in the delegate's decision by setting it aside: cf Zubair 139 FCR at 354. But the decision of the tribunal in respect of Mr Toro Martinez was given in respect of a different legal and factual scenario from that considered by the delegate and, because of Sales [2008] FCAFC 132 ; 171 FCR 56 , was no decision at all, being infected by jurisdictional error.
Case: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 ; (2004) 80 ALD 568
Outcome: followed
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 ; (2004) 80 ALD 568 at 573-574 [22] Lee and Moore JJ noted the principle that observance of the requirement that the review procedure be carried out according to law was an irreducible duty. They said that the tribunal only obtained power to make a determination under the Act where its decision was based on findings or inferences of the facts grounded on probative material and logical grounds. It followed that a decision based on illogical or irrational findings or inferences of fact is a decision not supported by reason and is therefore invalid.
Case: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1
Outcome: followed
reviewing an administrative decision the tribunal has to give the decision it considers to be the correct or preferable decision. That function must be performed independently of any instruction, advice or wish of the executive government, including in cases where government policy is a relevant factor for consideration and the powers of the tribunal are limited to affirming or recommending the reconsideration of the decisions of a Minister: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 17-18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, approving Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58 at 163 per Brennan J as President of the Tribunal. The decision of the tribunal in the particular circumstances of each case must be arrived at according to its opinion as to the merits of that case.
Case: Zubair v Minister for Immigration [2004] FCAFC 248 ; (2004) 139 FCR 344
Outcome: followed
long line of authority in this Court has held that the tribunal has jurisdiction to review a purported decision, even where it is clear that the decision of the original decision-maker was affected by a jurisdictional error: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited [1979] FCA 21 ; (1979) 41 FLR 338 at 342 344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration [2004] FCAFC 248 ; (2004) 139 FCR 344 at 352-354 [28] - [32] per Finn, Mansfield and Gyles JJ. The tribunal has power to cure a defect in the delegate's decision once the tribunal's jurisdiction has been invoked by an application for review: Zubair 139 FCR at 354. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 116 per Mason J. That being so, although the Minister's delegate's decision has been validated by item 7, the tribunal is yet to perform its function of review of that decision in accordance with law. By applying to the tribunal before the 2008 amendment came into force, a person who then invoked a challenge to the Minister's or delegate's decision under s 501(2) elected to treat that decision as valid, though erroneous, and to have the tribunal exercise the power, in preference to challenging the decision in judicial review proceedings: Twist 136 CLR at 116 per Mason J. And the tribunal could have "cured" the defect in the delegate's decision by setting it aside: cf Zubair 139 FCR at 354. But the decision of the tribunal in respect of Mr Toro Martinez was given in respect of a different legal and factual scenario from that considered by the delegate and, because of Sales [2008] FCAFC 132 ; 171 FCR 56 , was no decision at all, being infected by jurisdictional error.
Case: Bainton v Rajski (1992) 29 NSWLR 539
Outcome: cited
As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52] ; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300, [1]-[2]; S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277.
Case: Barton v Walker [1979] 2 NSWLR 740
Outcome: cited
As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52] ; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300, [1]-[2]; S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277.
Case: British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109
Outcome: cited
As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52] ; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) [1998] HCA 52 ; (1998) 156 ALR 300, [1]-[2]; S &amp; M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277.
Case: Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 231 ALR 663
Outcome: cited
Those principles were recently endorsed in Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 231 ALR 663 at [110] per Kirby and Crennan JJ.