mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494
Outcome: considered
The question of the absorption of a child into the Australian community was considered by the Full Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236. At [49] the Full Court noted with apparent approval the following passage from the reasons for judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 at [45] - [46] : In relation to the question of absorption into the community French J said in Johnson at [45]-[46]: '45 The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell , Dixon J said (at 577): ... there does not appear to be any general agreement as to the tests for the application of this very vague conception. The word "absorption" is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question. 46 Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following: 1. The time that has elapsed since the person's entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record. This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, "Deportation, The Immigration Power and Absorption into the Australian Community" (1986) 16 Fed Law Rev 288.'
Case: Minister for Immigration and Multicultural Affairs v Walsh [2002] FCAFC 205 ; (2002) 125 FCR 31
Outcome: cited
Nonetheless, under the Migration Act a person born in Papua after the commencement of the Citizenship Act required an entry permit to be entitled to enter or reside in any of the States or internal territories ( Re Minister for Immigration and Multicultural Affairs; Ex parte Ame [2005] HCA 36 ; (2005) 222 CLR 439 at [1] ). This was because Papua, as an external Territory, was not part of "Australia" for the purposes of the Migration Act ( Minister for Immigration and Multicultural Affairs v Walsh [2002] FCAFC 205 ; (2002) 125 FCR 31 at [15] - [21] cited with approval in Ex parte Ame at [1]).
Case: The King v Macfarlane; ex parte O'Flanagan and ex parte O'Reily [1923] HCA 39 ; (1923) 32 CLR 518
Outcome: cited
In The King v Macfarlane; ex parte O'Flanagan and ex parte O'Reily [1923] HCA 39 ; (1923) 32 CLR 518 at 580 Starke J expressed a similar view observing: ... the Constitution unites into a Federal Commonwealth the people of Australia. The entry into the Commonwealth of a person who at the moment of entering is already one of the people of Australia could hardly be described as an immigration into the Commonwealth; it would in truth be the return of an Australian to his homeland. ... Whether any given person is one of the people of Australia is necessarily a question of fact.
Case: The Queen v Forbes; ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168
Outcome: considered
Whether the view expressed by Knox CJ in Ex parte Walsh and Johnson remained the position in 1975 in respect of a person who had entered Australia after the Migration Act came into operation seems to me to be open to doubt. In The Queen v Forbes; ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168 at 172-173 Barwick CJ, with whom all other members of the High Court agreed, stated: It was said in O'Keefe v Calwell that immigration as a concept involves two elements (a) entry into the country and (b) absorption into the community of the country. Parliament clearly has authority to legislate with respect to both elements and laws which control those elements can be made under s 51(xxvii). It can say who may enter and it can say on what terms if at all a person so entering may become a member of the Australian community. In the Act Parliament has exercised these powers. It is there provided quite unequivocally that a person who is not already a member of the Australian community may not enter Australia except in pursuance of an entry permit. See definition of "immigrant" s 5(1) ss 5(2), 6(2). If he has no permit and enters Australia he is a prohibited immigrant. It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. (citation omitted) 30 However, as no reliance was placed in argument on The Queen v Forbes or on Mr Charlie's status under the Migration Act at the time of his arrival on Darnley Island , I will not consider this issue further.
Case: Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052
Outcome: cited
extension of time may be granted where an applicant can establish " special reasons ": Federal Court Rules 1979 (Cth) O 52 r 15(2). The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] ; Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 at [11] ; SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [10] . An applicant, it has been said, must advance a reason to take " the case out of the ordinary ": Jess v Scott (1986) 12 FCR 187 at 195. The rule confers " a flexible discretionary power ": (1986) 12 FCR 187 at 195. Even where " special reasons " can be established, the Court thus retains a discretion to grant or refuse the extension sought: Kordatos v Sweeney [2004] FCA 1487 at [17] per Cooper J. So much is apparent from the terms of r 15(2) itself "... the Court or a Judge for special reasons may at any time... ".
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 , 117 FCR 424
Outcome: cited
an extension of time within which to appeal to this Court were granted, the appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) would be by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 , 117 FCR 424. And, on appeal, the Court would have a discretion to admit further evidence pursuant to s 27 of the 1976 Act. It is, however, unlikely that the discretion conferred by s 27 would be exercised in favour of the now Applicant to so fundamentally revisit the evidence previously given. The fact remains that there was inordinate delay as between the date of the Tribunal decision in 2001 and the application for review by the Federal Magistrates Court in 2007. Either for the reasons given by the Federal Magistrate, or by reference to the account now advanced, any decision that the application should be rejected for discretionary reasons remains, it is considered, the correct decision.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
the reservation, it must be accepted, is of importance. The Federal Magistrate acted upon a concession made by the Applicant that he had received a copy of the Tribunal's decision " two to three months after the date which had been scheduled for the Tribunal's hearing (1 March 2001) ". But " the Tribunal's decision was sent to the applicant under cover of a letter dated 26 July 2001 ". The difficulty of conceding receipt of a letter before it was sent is apparent. A fundamental mistake as to the facts may bring an applicant within House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. But the reservation, it is considered, should not prevail. The Federal Magistrate had the benefit of the Applicant giving oral evidence and his conclusions were conclusions based upon the entirety of the evidence, including his assessment as to the Applicant's credibility. It may also be queried whether the finding of the Federal Magistrate as to when the Applicant became aware of the Tribunal's decision does indeed expose error. The words employed by the Magistrate suggest error &#8212; but the contradictory findings are made within the one paragraph of his reasons. It is most likely that the error simply exposes an error in transcription rather than such a fundamental misunderstanding as to the facts as now sought to be attributed to him by the Applicant.
Case: Kordatos v Sweeney [2004] FCA 1487
Outcome: cited
extension of time may be granted where an applicant can establish " special reasons ": Federal Court Rules 1979 (Cth) O 52 r 15(2). The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] ; Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 at [11] ; SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [10] . An applicant, it has been said, must advance a reason to take " the case out of the ordinary ": Jess v Scott (1986) 12 FCR 187 at 195. The rule confers " a flexible discretionary power ": (1986) 12 FCR 187 at 195. Even where " special reasons " can be established, the Court thus retains a discretion to grant or refuse the extension sought: Kordatos v Sweeney [2004] FCA 1487 at [17] per Cooper J. So much is apparent from the terms of r 15(2) itself "... the Court or a Judge for special reasons may at any time... ".
Case: N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, 68 ALD 21
Outcome: considered
the exercise of this discretion, some Judges have embraced the proposition that "... in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker ": R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356 at 357 per Lord Woolf MR. These observations have been applied by Finkelstein J in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [5] , [2005] FCA 195 ; 85 ALD 532 at 535. And in some circumstances, the Full Court has observed that in refugee cases leave to appeal out of time will " ordinarily " be granted: N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, 68 ALD 21. Lee, Moore and Madgwick JJ there observed: [12] In the present case although the delay involved is a period of two months, it is to be borne in mind that leave is sought by a person: who is an applicant for refugee status; who does not understand English; who is not familiar with the legal system of this country; and, who, at all material times, has been interned in a detention centre without legal representation. It may be concluded, therefore that in those circumstances "special reasons" have been demonstrated and given that the Minister will not be prejudiced if leave is granted, leave to appeal out of time, ordinarily, would be granted. Reservation may be expressed as to whether refugee cases fall into any special or separate category of case or whether the gravity or consequences of refusing an extension of time must be taken into account in all cases. In those cases where applicants are bona fide seeking asylum, it may well be that the gravity of the circumstances they confront may be a very real reason for granting the extension sought. The observations of the Full Court, it is considered, should not be understood as denying the discretion conferred by O 52 r 15(2) or indicating that any particular exercise of discretion should proceed otherwise than upon the basis of all of the relevant facts presented in any individual application. Those observations of the Full Court must also be understood to have been made in the context where there was an explanation for the entirety of the period for which the extension was there sought and where that extension was for a period far shorter than in the present proceeding.
Case: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9
Outcome: cited
relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12] . Notwithstanding the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the Applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20] ; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22] . There must be an explanation " for the whole of the delay ": SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19] .
Case: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185
Outcome: cited
for the Applicant's delay in invoking his rights, he would in all likelihood have obtained relief: R v Ross-Jones; Ex parte Green [1984] HCA 82 ; (1984) 156 CLR 185. Gibbs CJ there observed (at 194) in respect to relief in the nature of prohibition: If therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. This has been accepted by Gaudron and Gummow JJ as " the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution ": Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [51] , 204 CLR 82 at 106.
Case: R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356
Outcome: considered
the exercise of this discretion, some Judges have embraced the proposition that "... in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker ": R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356 at 357 per Lord Woolf MR. These observations have been applied by Finkelstein J in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [5] , [2005] FCA 195 ; 85 ALD 532 at 535. And in some circumstances, the Full Court has observed that in refugee cases leave to appeal out of time will " ordinarily " be granted: N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, 68 ALD 21. Lee, Moore and Madgwick JJ there observed: [12] In the present case although the delay involved is a period of two months, it is to be borne in mind that leave is sought by a person: who is an applicant for refugee status; who does not understand English; who is not familiar with the legal system of this country; and, who, at all material times, has been interned in a detention centre without legal representation. It may be concluded, therefore that in those circumstances "special reasons" have been demonstrated and given that the Minister will not be prejudiced if leave is granted, leave to appeal out of time, ordinarily, would be granted. Reservation may be expressed as to whether refugee cases fall into any special or separate category of case or whether the gravity or consequences of refusing an extension of time must be taken into account in all cases. In those cases where applicants are bona fide seeking asylum, it may well be that the gravity of the circumstances they confront may be a very real reason for granting the extension sought. The observations of the Full Court, it is considered, should not be understood as denying the discretion conferred by O 52 r 15(2) or indicating that any particular exercise of discretion should proceed otherwise than upon the basis of all of the relevant facts presented in any individual application. Those observations of the Full Court must also be understood to have been made in the context where there was an explanation for the entirety of the period for which the extension was there sought and where that extension was for a period far shorter than in the present proceeding.
Case: SZGND v Minister for Immigration and Citizenship [2008] FCA 680
Outcome: followed
the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the Applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20] ; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22] . There must be an explanation " for the whole of the delay ": SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19] .
Case: SZKDC v Minister for Immigration and Citizenship [2008] FCA 164
Outcome: cited
relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12] .
Case: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831
Outcome: cited
extension of time may be granted where an applicant can establish " special reasons ": Federal Court Rules 1979 (Cth) O 52 r 15(2). The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] ; Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 at [11] ; SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [10] . An applicant, it has been said, must advance a reason to take " the case out of the ordinary ": Jess v Scott (1986) 12 FCR 187 at 195. The rule confers " a flexible discretionary power ": (1986) 12 FCR 187 at 195. Even where " special reasons " can be established, the Court thus retains a discretion to grant or refuse the extension sought: Kordatos v Sweeney [2004] FCA 1487 at [17] per Cooper J. So much is apparent from the terms of r 15(2) itself "... the Court or a Judge for special reasons may at any time... ". Of relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12] .
Case: SZKSM v Minister for Immigration and Citizenship [2008] FCA 632
Outcome: cited
the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the Applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20] ; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22] . There must be an explanation " for the whole of the delay ": SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19] .
Case: SZKTN v Minister for Immigration and Citizenship [2008] FCA 633
Outcome: followed
the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the Applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20] ; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22] . There must be an explanation " for the whole of the delay ": SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19] .