mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236
Outcome: referred to
the end of the judgment, his Honour raised and addressed the application of ss 424 , 424A and 424B of the Act in relation to the information obtained by DFAT. His Honour referred to the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236. His Honour concluded that the case before him could be distinguished from SZKCQ because ' here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant. There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT '. His Honour held that the s 424A letters complied with that section. His Honour's reasons indicate that he did not consider that s 424 of the Act applied to the information obtained by DFAT. Even if there had been a breach of s 424 , it is apparent from his Honour's reasons that he understood that the provision of the letters from the Tribunal to the appellant complied with obligations to afford procedural fairness. It followed that relief should be refused ( SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ). It would seem by this ground that the appellant is referring to an issue raised by Raphael FM at the hearing, namely whether or not the information received by the Tribunal from DFAT (the newspaper article and the letter from Mr Sharma) was of the types of information considered in SZKTI or in SZKCQ .
Case: SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256
Outcome: referred to
the end of the judgment, his Honour raised and addressed the application of ss 424 , 424A and 424B of the Act in relation to the information obtained by DFAT. His Honour referred to the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236. His Honour concluded that the case before him could be distinguished from SZKCQ because ' here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant. There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT '. His Honour held that the s 424A letters complied with that section. His Honour's reasons indicate that he did not consider that s 424 of the Act applied to the information obtained by DFAT. Even if there had been a breach of s 424 , it is apparent from his Honour's reasons that he understood that the provision of the letters from the Tribunal to the appellant complied with obligations to afford procedural fairness. It followed that relief should be refused ( SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ).
Case: SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407
Outcome: followed
procedural restrictions on the specific power to issue an invitation to give additional information under s 424(2) do not qualify the Tribunal's general power in s 424(1) to "get any information that it considers relevant" ( Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48]). Therefore, there was no jurisdictional error on the part of the Tribunal in the way in which it obtained the information. In any event, the request for information from DFAT was not a request for "additional information" from a "natural person" ( SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407). The first request or invitation to DFAT resulted in the provision of the information that the newspaper article was not genuine. The second request or invitation was made through DFAT to Mr Sharma. Insofar as it was a second request to DFAT, it was not from a natural person; to the extent that it was from Mr Sharma, it was not additional information. Consequently there was no breach of s 424(2) of the Act or, it follows, of s 424B.
Case: SZMHU v Minister for Immigration and Citizenship [2008] FMCA 1243
Outcome: affirmed
appellants are citizens of Nepal who arrived in Australia on 22 April 2007. On 1 June 2007 the appellants lodged applications for protection visas which were refused by a delegate of the Minister on 24 August 2007. The appellants applied to the Tribunal for a review of that decision. The Tribunal upheld the decision of the delegate. On appeal to the Federal Magistrates Court, Raphael FM dismissed the appellants' application for review of the Tribunal decision ( SZMHU v Minister for Immigration and Citizenship [2008] FMCA 1243). The appellants are husband and wife. The appellant wife makes her claims as a member of the family unit of her husband ('the appellant'). The appellant claimed to fear persecution in Nepal on the basis of his imputed political opinion as a perceived Monarchist and his membership of a particular social group, being a businessman in Nepal. He claimed that he was a successful businessman and that, because of this, he became the subject of extortion threats from Maoists in Pokhara. He says that he was targeted by the Young Communist League ('YCL'), a Maoist offshoot, for extortion due to his perceived wealth. He claimed that he initially made the contributions but eventually decided to stop making any more contributions. As a consequence, his face was tarred and he was paraded around the town as a public humiliation ('the incident'). He claimed that an attempt to relocate to Kathmandu was not successful in avoiding the Maoists who discovered him there and subjected him to further extortion. He also claimed that the authorities were unable to protect him. The delegate noted that the appellant claimed persecution on the grounds that he was perceived as an active Monarchist by the Maoists, that he belonged to the particular social group "businessmen in Nepal" and was targeted by Maoists for extortion. However, the delegate concluded that the appellant's claims lacked credibility and sufficient specific detail for him to be satisfied that the appellant faced a real chance of persecution because of his membership of a particular social group or because of an imputed political opinion. The reasons given by the delegate were, in summary: The appellant's passport had indicated that he departed Nepal on two different occasions and returned in July 2006 and in 2007. His voluntary return to Nepal suggested that he did not have a real fear of persecution in Nepal. The passport appeared to indicate that the appellant had returned to Nepal on 31 January 2007. It was therefore unlikely that his claim to have been harmed by the YCL in the incident on 28 January 2007 was true. The appellant's claims to have fled Pokhara because of threats from the Maoists were inconsistent with a document he provided which showed that once he left Pokhara, his brother took over the business and appeared to run it profitably.
Case: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
Outcome: referred to
The Notice of Appeal alleging a breach of the requirements of s 424A of the Act was dismissed by Barnes FM in her reasons for judgment. Her Honour said in par 11: '... when one considers the Tribunal's reasons for decision, it is apparent that the reason for the Tribunal's findings, including its ultimate finding of a lack of satisfaction that the applicant had a well-founded fear of persecution (and hence was a person to whom Australia had protection obligations) was based on the inadequacy of the claims and the material submitted by the applicant. The Tribunal referred to the scant details of the applicant's claims and gave examples of such inadequacy.' Her Honour continued at par 12: 'This is not a case in which the Tribunal purported to rely on any inconsistencies between what appeared in the protection visa application and in the applicant's claims as made to the Tribunal. Rather the decision turned on the inadequacy of the materials provided. In such circumstances, as in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [ 2005 ] FCA 1195 ['SZEZI'] , it cannot be said that there is information which forms the reason or part of the reason for affirming a decision under review subject to the operation of the obligation in section 424A(1). ' 5 Her Honour referred to the decision of Allsop J in SZEZI and accepted the application of his Honour's comments to the case before her Honour, where Allsop J had said, at par 29: '... The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded upon the perceived inadequacy of the information, in the sense of an absence of detail and intrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.'
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 6
Outcome: referred to
Later her Honour said at par 15, after having referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 6: 'In this case it was the inadequacy of information alone which provided the basis for the Tribunal decision.' Her Honour concluded: 'No failure to comply with s 424A(1) of the Migration Act is established on the material before the Court.' 7 Barnes FM was correct to so find. The material before the Court does not disclose any reviewable error in the decision of Barnes FM. 8 The appeal of the appellant is dismissed.
Case: Repatriation Commission v Ahrenfield (1991) 29 FCR 556
Outcome: cited
The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989) 87 ALR 511 , Repatriation Commission v Ahrenfield (1991) 29 FCR 556 , Proctor v Repatriation Commission [1999] FCA 32 ; (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568. Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision: "1. the nature of the veteran's service overall; 2. the essential character of the veteran's service during the period spent outside Australia when that essential character is determined by reference to matters such as: (1) the period of time for which the veteran is outside Australia; (2) the purpose for which the veteran was outside Australia; (3) events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area; (4) the veteran's activities during the period outside Australia; and (5) the veteran's activities both before and after the period of service outside Australia; and 3. whether, having regard to its conclusions on the first two matters, the veteran's service in the particular period can be seen to be treated as operational service."
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law was not merely a qualifying condition to ground an appeal under s 44 , " but also the subject matter of the appeal itself ..." (Emphasis added.)
Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: applied
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.) 21 Each of the questions is fraught with ambiguity. Each asks, in substance, whether, on the facts found by the Tribunal, it was open to it to make the finding of fact that Mr Roper did not render operational service during World War II. The ambiguity arises, particularly in relation to question 2.4, because the questions may be understood as asking either whether there was any evidence accepted by the Tribunal which supported its finding or whether the evidence or the weight of the evidence before the Tribunal supported its finding: cf Lambroglou at 523. A question of the latter kind is not a question of law. As Ryan J held in Lambroglou (at 527): "If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law." Had the questions been framed along the lines of whether there was any evidence before the Tribunal to support its findings that Mr Roper had not rendered continuous full-time service outside Australia and that, accordingly, he had not rendered operational service, appropriate questions of law would have been raised: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. There would not, however, have been grounds which linked these questions to the circumstances of the case and the orders sought by Mrs Roper. Grounds 4.1 and 4.3 appear to allege that the Tribunal misconstrued Item 1(a) in s 6A of the VE Act rather than suggest that there was no evidence to support the findings.
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.)
Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.)
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.)
Case: Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.)
Case: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456
Outcome: cited
It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added.)