mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sobey v Nicol and Davies, in the matter of Guiseppe Antonio Mercorella [2007] FCAFC 136
Outcome: referred to
The appellant applied to tender on the hearing of the appeal a transcript of the hearing before the Tribunal. It was said by the appellant that this was relevant to the allegation that the Federal Magistrate erred in failing to conclude that the Tribunal had not complied with s 425(1) of the Act . The application was opposed by the Minister. If unsuccessful in that opposition, the Minister sought to tender what he said was an accurate copy of the transcript. I have read both copies of the transcript and although there are differences they are not material to the issues on the appeal. It seems to me that if the appellant is able to raise the allegation of non-compliance with s 425(1) of the Act in the way in which it is now put, the discretion should be exercised to receive the transcript on the hearing of the appeal. It is strictly further evidence but it is, subject to the corrections, uncontroversial and it is clearly relevant or potentially relevant to the allegation of non-compliance with s 425(1). Furthermore, the appellant was unrepresented before the Federal Magistrate. There have been a number of decisions of this Court on the scope and effect of s 27 of the Federal Court of Australia Act 1976 (Cth) and the differences between the discretion in s 27 and the common law procedures relating to the receipt of fresh or further evidence on an appeal. For present purposes it is sufficient for me to refer to the decision of the Full Court of this Court in Sobey v Nicol and Davies, in the matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 at [36] - [80] .
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: considered
The scope of s 424A of the Act has been considered on many occasions. The most recent consideration of the section by the High Court was in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (" SZBYR "). In that case, the Tribunal had found that the male applicant was not a reliable witness and one reason for that conclusion was the inconsistencies between a prior statutory declaration of the male applicant and his oral evidence. A question arose as to whether s 424A was engaged in relation to either the prior statutory declaration or the inconsistencies, or both. 64 The Court said that s 424A was not engaged. The prior statutory declaration could not constitute "the reason, or a part of the reason, for affirming the decision that is under review". The Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said (at 615 [17]): When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. 70 The information in the letter from Mr Dellar is in the same category as the statutory declaration in SZBYR in that if its contents were accepted then that would be a reason for rejecting the decision under review, not affirming it. If the information is instead or, in addition, the Tribunal member's views of the letter's shortcomings that is not information within s 424A(1) because it is no more than a conclusion about a gap in the evidence.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1
Outcome: referred to
Whether under s 36(2) Australia has protection obligations to a particular person depends upon whether that person satisfies the definition of a refugee in Article 1A of the Convention, in the context of other relevant Articles (per Gummow A-CJ, Callinan, Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 ('QAAH') at [37]). 6 In Article 1A(2) of the Convention the term 'refugee' applies to any person who: '... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...' 7 By virtue of s 91R(1) of the Act, the requirements of Article 1A(2) in respect of persecution are not met unless the persecution involves serious harm to the person and the persecution involves systematic and discriminatory conduct. Instances of 'serious harm' for the purposes of s 91R are to be found in s 91R(2). 9 Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal Member conducting the enquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] [58]; see also QAAH at [40]).
Case: Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: cited
Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal Member conducting the enquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] [58]; see also QAAH at [40]).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: referred to
The Act does not require that the Tribunal actively assist an applicant in putting his case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [36] ).
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
In relation to matters of procedural fairness at a Tribunal hearing Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 ('SZBEL') at [47]-[48]: '47. ... It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 48. ... as Lord Diplock said in F Hoffmann-La Roche &amp; Co AG v Secretary of State for Trade and Industry , "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.' (footnotes omitted)
Case: SZHBP v Minister for Immigration and Citizenship (2007) 97 ALD 84
Outcome: referred to
An application by the appellant to the Federal Magistrates Court for constitutional writ relief was dismissed. However, an appeal from that decision was upheld by Rares J on 15 August 2007. He made an order quashing the decision of the second Tribunal member of 27 November 2006 and granted relief in the nature of mandamus directing the Tribunal to hear and determine the application for review lodged 14 September 2004 according to law (see SZHBP v Minister for Immigration and Citizenship (2007) 97 ALD 84). 41 Thereupon, by letter dated 17 September 2007, the appellant was invited to a further hearing before the Tribunal on 28 September 2007. By its letter the Tribunal informed the appellant that it had considered the material before it but was unable to make a favourable decision on that information alone. 42 The appellant again responded to the hearing invitation by indicating that he wished to attend the proposed hearing.
Case: SZHBP v Minister for Immigration &amp; Citizenship [2008] FMCA 699
Outcome: referred to
At [12] of his reasons for judgment (see SZHBP v Minister for Immigration &amp; Citizenship [2008] FMCA 699) Federal Magistrate Raphael referred to senior counsel for the appellant's written submissions where he set out the basis upon which he proposed to argue that 'a fair-minded lay person properly informed as to the nature of the proceedings and other relevant matters might reasonably apprehend that the third Tribunal might not have brought an impartial mind to the applicant's review' (emphasis added).
Case: Friends of Hinchinbrook Society Inc. v The Minister for the Environment (No.1) (1996) 69 FCR 1 
Outcome: distinguished
IFT contends that the fact that Gunns was joined to the proceeding on its own application should be taken into account when exercising the Court's discretion to award costs. IFT relies on the case of Friends of Hinchinbrook Society Inc. v The Minister for the Environment (No. 1) (1996) 69 FCR 1 for the proposition that it is appropriate to deny Gunns its costs in circumstances where it was joined to the proceeding as an interested person on its own application. In Friends of Hinchinbrook , Branson J imposed a condition on the joinder that the additional respondent not seek its costs in the proceeding. That decision was upheld on appeal: Friends of Hinchinbrook Society Inc. v The Minister for Environment (unreported, Northrop, Burchett and Hill JJ, 27 May 1997). 9 In Friends of Hinchinbrook at 13, Branson J did not view the State of Queensland as a necessary party to the proceeding. In this matter Gunns was a necessary party to the proceeding. Its rights and interests were capable of being directly affected by any order made in the proceeding. It should have been joined at the outset: see, News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525. It is irrelevant that IFT did not seek any relief against Gunns. The challenge to the Minister's decisions involved IFT seeking relief against him and not Gunns. Even so, Gunns' direct interest in the outcome of the challenge was greater than any direct interest apart from that of the Minister.
Case: Friends of Hinchinbrook Society Inc. v The Minister for Environment (unreported, Northrop, Burchett and Hill JJ, 27 May 1997)
Outcome: distinguished
IFT contends that the fact that Gunns was joined to the proceeding on its own application should be taken into account when exercising the Court's discretion to award costs. IFT relies on the case of Friends of Hinchinbrook Society Inc. v The Minister for the Environment (No. 1) (1996) 69 FCR 1 for the proposition that it is appropriate to deny Gunns its costs in circumstances where it was joined to the proceeding as an interested person on its own application. In Friends of Hinchinbrook , Branson J imposed a condition on the joinder that the additional respondent not seek its costs in the proceeding. That decision was upheld on appeal: Friends of Hinchinbrook Society Inc. v The Minister for Environment (unreported, Northrop, Burchett and Hill JJ, 27 May 1997).
Case: News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Outcome: applied
In Friends of Hinchinbrook at 13, Branson J did not view the State of Queensland as a necessary party to the proceeding. In this matter Gunns was a necessary party to the proceeding. Its rights and interests were capable of being directly affected by any order made in the proceeding. It should have been joined at the outset: see, News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525. It is irrelevant that IFT did not seek any relief against Gunns. The challenge to the Minister's decisions involved IFT seeking relief against him and not Gunns. Even so, Gunns' direct interest in the outcome of the challenge was greater than any direct interest apart from that of the Minister.
Case: The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863
Outcome: cited
The submissions on costs from the applicant and the respondents overlap substantially with the submissions on costs relied on in The Wilderness Society proceeding, as the proceedings were heard together and evidence in one was evidence in the other: see, The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863 (TWS proceeding). These reasons should be read in conjunction with the reasons published in the TWS proceeding today. 4 IFT submits that the Court should make no order as to costs. Where IFT submits that no order should be made in favour of the first respondent, I reject that submission and adopt the reasons contained in the TWS proceeding. 5 There is a difference between the submissions of the parties in this matter and those in the TWS proceeding which emphasise the fact that Gunns was joined as a party to the proceeding on its own application over the opposition of IFT. IFT made specific submissions seeking an order that Gunns would not be entitled to its costs if it was joined to the proceeding as an additional respondent. In making orders joining Gunns as an additional respondent, the Court reserved its determination on the question of costs.
Case: The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179
Outcome: cited
The Court published its judgment in the substantive proceeding on 9 August 2007, dismissing the application wholly in favour of the first and second respondents : see, The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179. In that judgment, orders as to costs were reserved and an order made that the parties file and serve written submissions on the question of costs within 21 days of the primary judgment. Accordingly, written submissions were received from the parties under an agreed extended timetable. I now set out my reasons regarding the question of costs.
Case: Comcare v Burton (1998) 50 ALD 846
Outcome: referred to
Cheung seeks to distinguish Power on the basis that, in that case, the only prior determination had been by the determining authority and not by the Tribunal following a contested hearing of the claim. However, the Tribunal's power is enlivened upon reconsideration of a determination in accordance with s 62 of the SRC Act. As Finn J said in Comcare v Burton (1998) 50 ALD 846 , the review procedure under the SRC Act has three stages: (a) the initial determination as defined in s 60; (b) reconsideration of the determination under s 62; and (c) review of the reconsideration decision (a reviewable decision) by the Tribunal under s 64. The 2008 Tribunal had the jurisdiction to review the reviewable decisions of Australia Post, being decisions which gave rise to determinations (s 60 of the SRC Act) and had been reconsidered so as to constitute s 62 reviewable decisions ( Power at 525 citing Burton ). As Sackville J noted in Power at 525 (citing Burton ), s 43(1) of the AAT Act is not a source of jurisdiction but confers powers on the Tribunal in relation to matters in which it has jurisdiction.
Case: Hanna v Australian Postal Corporation [1990] FCA 153 ; (1990) 12 AAR 511
Outcome: cited
Hanna v Australian Postal Corporation [1990] FCA 153 ; (1990) 12 AAR 511 at 513, Davies J said that s 62(1) of the SRC Act meant that the determining authority was entitled to reconsider its own determinations. A reconsideration decision made under s 62 is a "reviewable decision" which may be reviewed by the Tribunal under s 64. That is, on a s 64 application to the Tribunal, the Tribunal reviews the reviewable decision; in this case, the reconsideration decisions made by Australia Post, the determining authority. For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by the SRC Act on the decision-maker and may affirm, vary or set aside the decision under review (s 43(1) of the AAT Act). The Tribunal decision is then, for all relevant purposes, the decision of the decision-maker (s 43(6) of the AAT Act). The reconsideration of a determination is not confined. There is no statutory requirement to apply the earlier determination or to take it into account. Inherent in the provision for reconsideration is the concept that that reconsideration is untrammelled by any previous determination. This does not preclude the determining authority from taking the previous determination into account but there is no requirement to do so. Similarly, there is no statutory requirement on the Tribunal to take into account any previous determinations or reconsideration decisions when reviewing a reviewable decision.
Case: Lang v Comcare (2007) 94 ALD 141
Outcome: cited
43 refers to a substantive decision on the merits of the matter and not to each and every preliminary determination on the receipt or rejection of evidence, or to whether or not the Tribunal will allow argument on a specific issue sought to be raised before it. It goes without saying that there is no specific provision obliging the Tribunal to consider a previous Tribunal decision in relation to the same parties. The Tribunal had a duty to record its reasons for the substantive decision and the evidence upon which those reasons where based. The Tribunal was obliged to give reasons in relation to an application made to it. No application was made to the 2008 Tribunal in respect of the weight to be given to the 2001 Tribunal decision, nor did it form part of the evidence tendered by Ms Cheung (cf Lang v Comcare (2007) 94 ALD 141). The Tribunal is not bound by the laws of evidence and is entitled to inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c) of the AAT Act). The 2008 Tribunal decision does refer to the 2001 Tribunal decision in circumstances where it is apparent that the 2008 Tribunal made up its own mind on the evidence before it. Ms Cheung has not submitted that the 2001 Tribunal decision formed any part of the material facts relied upon by the 2008 Tribunal. The 2008 Tribunal had before it evidence that differed from the evidence before the 2001 Tribunal. The 2008 Tribunal was entitled to form its own view on the merits of the case, including the credibility of Ms Cheung and to determine the question before it as a review of reconsideration (reviewable) decisions made under s 62 of the SRC Act.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
the 2001 Tribunal decision was not "a relevant consideration" in the sense that it was not required by the legislation to be considered, either expressly or by implication ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24). The 2008 Tribunal was not bound to apply the 2001 Tribunal decision but did have a discretion to take the 2001 Tribunal decision into account. No interlocutory application was made to the 2008 Tribunal prior to the calling of evidence and the making of submissions on the basis that the 2001 Tribunal decision was determinative. The 2008 Tribunal was aware of the 2001 Tribunal decision but embarked upon its own determination in the light of fresh medical evidence and in the context of different reviewable decisions. That course was made clear to counsel. There is no allegation that there was a denial of procedural fairness. As Australia Post was entitled to reconsider a determination without applying or considering an earlier determination of the 2001 Tribunal decision, the 2008 Tribunal was entitled to do the same.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Tribunal is obliged to give reasons for its final and operative decision ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323). Section 43(2) of the AAT Act requires the Tribunal to give reasons either orally or in writing for its decision. Section 43(2B) provides that the reasons should include findings on material questions of fact and refer to the evidence or other material on which those findings were based.
Case: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Outcome: cited
speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course ( Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390).