mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sleep v Repatriation Commission [2008] AATA 1101
Outcome: affirmed
on 10 December 2008, in Sleep v Repatriation Commission [2008] AATA 1101 , the AAT made the following decision: The decision of the Repatriation Commissioner dated 13 August 2007, as affirmed by a decision of a review officer dated 19 March 2008, which reduced Mr Sleep's rate of pension from 26 August 2007, is affirmed. It is from those two decisions that the applicant appealed to a judge of this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The appeals were heard together and the orders dismissing those appeals were made on 12 May 2009. It was not until 3 September 2009 that the applicant made an application for an extension of time to file and serve a notice of appeal. Even then one application only was made in respect of both matters.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
It is submitted that the Tribunal ignored the appellant's claim that he was suffering from serious headaches and tension as a result of being tortured by the PSB in China. This is tied to the fifth particular, that the Tribunal was well aware of the appellant's health problems because he collapsed at the adjourned hearing. However as the Federal Magistrate observed at [20]-[21] these matters were considered by the Tribunal. The Tribunal adjourned the hearing twice. The appellant was afforded the opportunity to put further submissions in writing. The Tribunal concluded, having regard to the appellant's medical certificates, that his headaches was caused by hypertension and overwork and not as a result of mistreatment by Chinese authorities. It also found that the appellant's inability to give details of Falun Gong was by reason of his ignorance of the practices, rather than his health problems. It was well open to the Tribunal to so find: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] ; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. 24 As the first respondent submitted and as I accept the Tribunal's decision was ultimately based on the vagueness of the appellant's claims; his ignorance of Falun Gong practises; and, based on country information, the improbability of a person of adverse interest to the Chinese authorities which the appellant claimed to be being given a passport and being able to easily leave China which the appellant did. Such reasoning based on credibility of testimony and consistency with independent country information was clearly within the Tribunal's jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] per McHugh J; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. In any event no jurisdictional error arises in simply making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . However I am persuaded that the findings of fact were well open to the Tribunal.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The Federal Magistrate considered this generalised complaint in two possible ways. Firstly if this was a request at merits review then he correctly found that to be beyond the jurisdiction of the court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272.
Case: Minister for Immigration &amp; Multicultural Affairs v Jia Le Geng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
Secondly, if it was an allegation of bias then as he found correctly it was not particularised or supported by evidence. Such an allegation must of course be firmly and distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Le Geng [2001] HCA 17 ; (2001) 205 CLR 507.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
The appellant submitted that the Tribunal failed to either speak with the appellant's doctor or the Asylum Seekers Centre before making its decision. The Federal Magistrate at [21], correctly held that s 424 of the Act empowers but does not oblige the Tribunal to actively seek information. The Tribunal has no obligation to exercise its inquisitorial powers: WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 at [19] - [24] ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] .
Case: NABE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
The appellant submitted that the Tribunal ignored the fact that the appellant was seeking assistance from the Asylum Seekers Centre and that the Tribunal failed to contact an officer of that centre as the appellant had requested. The Tribunal is empowered but not obliged to seek out information. It was for the appellant to put his case to the Tribunal. It was entitled to decide his case by reference to his claims and the evidence put before it without looking further: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [61] .
Case: Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
It is submitted that the Tribunal ignored the appellant's claim that he was suffering from serious headaches and tension as a result of being tortured by the PSB in China. This is tied to the fifth particular, that the Tribunal was well aware of the appellant's health problems because he collapsed at the adjourned hearing. However as the Federal Magistrate observed at [20]-[21] these matters were considered by the Tribunal. The Tribunal adjourned the hearing twice. The appellant was afforded the opportunity to put further submissions in writing. The Tribunal concluded, having regard to the appellant's medical certificates, that his headaches was caused by hypertension and overwork and not as a result of mistreatment by Chinese authorities. It also found that the appellant's inability to give details of Falun Gong was by reason of his ignorance of the practices, rather than his health problems. It was well open to the Tribunal to so find: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] ; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. 24 As the first respondent submitted and as I accept the Tribunal's decision was ultimately based on the vagueness of the appellant's claims; his ignorance of Falun Gong practises; and, based on country information, the improbability of a person of adverse interest to the Chinese authorities which the appellant claimed to be being given a passport and being able to easily leave China which the appellant did. Such reasoning based on credibility of testimony and consistency with independent country information was clearly within the Tribunal's jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] per McHugh J; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. In any event no jurisdictional error arises in simply making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . However I am persuaded that the findings of fact were well open to the Tribunal.
Case: WAEH of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 364
Outcome: cited
The appellant submitted that the Tribunal failed to either speak with the appellant's doctor or the Asylum Seekers Centre before making its decision. The Federal Magistrate at [21], correctly held that s 424 of the Act empowers but does not oblige the Tribunal to actively seek information. The Tribunal has no obligation to exercise its inquisitorial powers: WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 at [19] - [24] ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] .
Case: W148/00A v Minister for Immigration &amp; Multicultural Affairs (2001) 185 ALR 703
Outcome: cited
It is submitted that the Tribunal ignored the appellant's claim that he was suffering from serious headaches and tension as a result of being tortured by the PSB in China. This is tied to the fifth particular, that the Tribunal was well aware of the appellant's health problems because he collapsed at the adjourned hearing. However as the Federal Magistrate observed at [20]-[21] these matters were considered by the Tribunal. The Tribunal adjourned the hearing twice. The appellant was afforded the opportunity to put further submissions in writing. The Tribunal concluded, having regard to the appellant's medical certificates, that his headaches was caused by hypertension and overwork and not as a result of mistreatment by Chinese authorities. It also found that the appellant's inability to give details of Falun Gong was by reason of his ignorance of the practices, rather than his health problems. It was well open to the Tribunal to so find: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] ; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. 24 As the first respondent submitted and as I accept the Tribunal's decision was ultimately based on the vagueness of the appellant's claims; his ignorance of Falun Gong practises; and, based on country information, the improbability of a person of adverse interest to the Chinese authorities which the appellant claimed to be being given a passport and being able to easily leave China which the appellant did. Such reasoning based on credibility of testimony and consistency with independent country information was clearly within the Tribunal's jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] per McHugh J; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. In any event no jurisdictional error arises in simply making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . However I am persuaded that the findings of fact were well open to the Tribunal.
Case: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344
Outcome: cited
It operates where the applicant seeks to protect some specific or personal right by the making of the order: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 at [29] per Debelle J. In Intercapital Holdings Ltd v M.E.H. Ltd &amp; Ors (1988) 6 ACLC 1068 Brooking J in the Victorian Supreme Court was concerned with, relevantly, an application for an inspection of books of a company pursuant to s 265B of the then Companies (Victoria) Code. That statutory provision is substantially in the same terms as s 247A(1) of the Act . His Honour (at 1,074) considered as relevant to the questions of whether the applicant was acting in good faith and for a proper purpose that a reasonable shareholder in a company could take the view that his investment in that company may be adversely affected by a particular transaction and could take the view that he wished to investigate the question whether he should endeavour to cause legal proceedings to be taken whereby he or the company may in appropriate circumstances recover damages or compensation for wrongful acts associated with the transaction. In this case, although not dealing with one transaction but a number of transactions involving questions or concerns as to proper accounting in the respondent's books, the applicant is doing the very same. Access to the respondent's books will assist his investigation of concerns which may result in proceedings in his own right and/or in the name of the respondent.
Case: Barrack Mines Ltd v Grants Patch Mining Ltd (No 2) [1988] 1 Qd R 606
Outcome: cited
Section 247A(1) expresses a composite notion of good faith and a proper purpose: Barrack Mines Ltd v Grants Patch Mining Ltd (No 2) [1988] 1 Qd R 606 and Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151. By extension, in my opinion, this is also the position in respect of the requirement of good faith and proper purpose contained within s 247A(5). See Chuen v Laredo Pty Ltd [2005] WASC 58 at [59] .
Case: Caveat Pty Ltd v Baillie &amp; Ors [2002] WASC 83
Outcome: followed
Where orders for inspection are sought under the regime found within s 247A(3) -(6), this will require, in my opinion, a consideration of the bases relied upon or to be relied upon in any foreshadowed application pursuant to s 237 of the Act . Accordingly, I respectfully agree, with the view expressed by Master Sanderson in Caveat Pty Ltd v Baillie &amp; Ors [2002] WASC 83 at [24] - [25] . This approach was adopted by Commissioner Siopis SC, as he then was, in Chuen v Laredo Pty Ltd &amp; Ors [2005] WASC 58 at [59] .
Case: Intercapital Holdings Ltd v M.E.H. Ltd &amp; Ors (1988) 6 ACLC 1068
Outcome: applied
It operates where the applicant seeks to protect some specific or personal right by the making of the order: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 at [29] per Debelle J. In Intercapital Holdings Ltd v M.E.H. Ltd &amp; Ors (1988) 6 ACLC 1068 Brooking J in the Victorian Supreme Court was concerned with, relevantly, an application for an inspection of books of a company pursuant to s 265B of the then Companies (Victoria) Code. That statutory provision is substantially in the same terms as s 247A(1) of the Act . His Honour (at 1,074) considered as relevant to the questions of whether the applicant was acting in good faith and for a proper purpose that a reasonable shareholder in a company could take the view that his investment in that company may be adversely affected by a particular transaction and could take the view that he wished to investigate the question whether he should endeavour to cause legal proceedings to be taken whereby he or the company may in appropriate circumstances recover damages or compensation for wrongful acts associated with the transaction. In this case, although not dealing with one transaction but a number of transactions involving questions or concerns as to proper accounting in the respondent's books, the applicant is doing the very same. Access to the respondent's books will assist his investigation of concerns which may result in proceedings in his own right and/or in the name of the respondent.
Case: Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151
Outcome: cited
Section 247A(1) expresses a composite notion of good faith and a proper purpose: Barrack Mines Ltd v Grants Patch Mining Ltd (No 2) [1988] 1 Qd R 606 and Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151. By extension, in my opinion, this is also the position in respect of the requirement of good faith and proper purpose contained within s 247A(5). See Chuen v Laredo Pty Ltd [2005] WASC 58 at [59] . 63 The right to apply under s 247A(1) confined as it is to members means that the applicant's purpose must be reasonably related to his or her status as a member: Knightswood Nominees Pty Ltd v Sherwin Pastoral Co Ltd (1989) 15 ACLR 151. I am satisfied that the applicant's purpose is proper in that respect.
Case: Re Humes Ltd (1987) 5 ACLC 64
Outcome: cited
The applicant has no recollection of saying to Ms Dalton that he was looking forward to destroying the respondent. Even if I were to accept Ms Dalton's evidence I would not regard that as sufficient evidence that this application has as its predominant purpose the disruption of the respondent's business. There is clearly hostility between the applicant and Mr Gilmour. This of itself does not necessarily lead to a finding of lack of good faith and in this case I do not do so: Re Humes Ltd (1987) 5 ACLC 64 at [70]. 71 Nor am I persuaded that the applicant has been guilty of such delay as to evidence bad faith. The applicant had sought justification of certain financial information which, as a shareholder of longstanding, seriously concerned him. The respondent through Mr Gilmour brusquely refused to assist him. Shortly after leaving the employ of the respondent, after offers and counter-offers relating to the sale firstly of Mr Gilmour's shareholding and then the applicant's shareholding, formal demands for access to the respondent's books for inspection was made by the applicant's solicitors. Those requests proved futile and led shortly thereafter, as foreshadowed, to this application. 72 I do not consider that anything turns on the failure of the applicant to tender expert accounting evidence. As I indicated earlier the respondent through its counsel conceded that the figures relied upon by the applicant in its affidavits and written submissions were accurate. It does not require an accountant, in my view, for it to be discerned that there are serious concerns raised by the matters complained of in respect of the financial statements and tax returns to which the applicant points.
Case: Comcare v Amorebieta (1996) 66 FCR 83
Outcome: considered
the course of the hearing, counsel for the applicant submitted that the Tribunal did not consider the submission, founded upon the observations of von Doussa J in O'Keefe v Comcare [1998] FCA 603 and of Mansfield J in Comcare v Moon [2003] FCA 569 ; (2003) 75 ALD 160 at [50] , consistent with the approach taken by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 that a finding of permanent impairment under Tables 9.5 or 9.6 was available despite Dr McGill's findings on examination. In that last-mentioned case, Jenkinson J said at 99: It was a further ground of appeal that the Tribunal, having found 'that there are occasions on which [the respondent] has a full range of movement if movement is to be measured in a technical sense', erred in law in failing to recognise that the word 'loss' in Table 9.6 and particularly in the phrase 'loss of less than half normal range of movement' requires that that degree of restriction of movement be always present. In that stark form the submission was perhaps not pressed. Nor do I accept it. The finding was based on some of the evidence by medical practitioners who at particular examinations found the respondent able to move within the normal range. But what is done on a particular occasion under medical observation is not determinative of the assessment which Table 9.6 requires.
Case: Comcare v Davies (2008) 173 IR 294
Outcome: considered
reasons must be adequate they do not need to be self-contained their sufficiency can depend on the manner in which a case was conducted, and such matters as the 'basic stock of knowledge common to both parties': Cypressvale Pty Ltd v Retail Shopping Lease Tribunal [1995] QCA 187 ; [1996] 2 Qd R 462 per McPherson and Davies JJA at 492. Similar observations were more recently made by Flick J in Comcare v Davies (2008) 173 IR 294 at [31] and [32]: ... The nature and extent of this obligation [under s 43(2B) of the AAT Act] has been extensively canvassed. For the purposes of the resolution of the present appeal it is sufficient to note that the reasons of the Tribunal are 'meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed' : Minister for Immigration &amp; Ethnic Affairs v Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. But it is equally important 'to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address' : Zhang v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 30 at [14] . 32. The extent of the reasoning provided in accordance with s 43(2B) must also be considered against the backdrop of the contentions advanced for resolution and the evidence presented. The Tribunal is exhorted by s 2A of the 1975 Act to 'pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick' . When carrying out its functions the Tribunal is also obliged to 'ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case' : s 39(1). The person who made the decision being reviewed by the Tribunal is also required to 'use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding' : s 33(1AA). (Emphasis added)
Case: Comcare v Moon [2003] FCA 569 ; (2003) 75 ALD 160
Outcome: referred to
the course of the hearing, counsel for the applicant submitted that the Tribunal did not consider the submission, founded upon the observations of von Doussa J in O'Keefe v Comcare [1998] FCA 603 and of Mansfield J in Comcare v Moon [2003] FCA 569 ; (2003) 75 ALD 160 at [50] , consistent with the approach taken by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 that a finding of permanent impairment under Tables 9.5 or 9.6 was available despite Dr McGill's findings on examination. In that last-mentioned case, Jenkinson J said at 99: It was a further ground of appeal that the Tribunal, having found 'that there are occasions on which [the respondent] has a full range of movement if movement is to be measured in a technical sense', erred in law in failing to recognise that the word 'loss' in Table 9.6 and particularly in the phrase 'loss of less than half normal range of movement' requires that that degree of restriction of movement be always present. In that stark form the submission was perhaps not pressed. Nor do I accept it. The finding was based on some of the evidence by medical practitioners who at particular examinations found the respondent able to move within the normal range. But what is done on a particular occasion under medical observation is not determinative of the assessment which Table 9.6 requires.