mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: cited
The First Respondent says that since the Appellant 'republished' the relevant information to the Tribunal for the purposes of the application before the Tribunal, the Tribunal acted in a way entirely consistent with the principles identified in the following decisions of the Full Court of the Federal Court; Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; and the principles identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; and notions of 'republication', discussed in the following decisions of the Federal Court; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 ; and SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: cited
The First Respondent says that since the Appellant 'republished' the relevant information to the Tribunal for the purposes of the application before the Tribunal, the Tribunal acted in a way entirely consistent with the principles identified in the following decisions of the Full Court of the Federal Court; Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; and the principles identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; and notions of 'republication', discussed in the following decisions of the Federal Court; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 ; and SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611.
Case: SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
Outcome: cited
The First Respondent says that since the Appellant 'republished' the relevant information to the Tribunal for the purposes of the application before the Tribunal, the Tribunal acted in a way entirely consistent with the principles identified in the following decisions of the Full Court of the Federal Court; Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; and the principles identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; and notions of 'republication', discussed in the following decisions of the Federal Court; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 ; and SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611.
Case: SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611
Outcome: cited
The First Respondent says that since the Appellant 'republished' the relevant information to the Tribunal for the purposes of the application before the Tribunal, the Tribunal acted in a way entirely consistent with the principles identified in the following decisions of the Full Court of the Federal Court; Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; and the principles identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; and notions of 'republication', discussed in the following decisions of the Federal Court; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 ; and SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
The First Respondent says that since the Appellant 'republished' the relevant information to the Tribunal for the purposes of the application before the Tribunal, the Tribunal acted in a way entirely consistent with the principles identified in the following decisions of the Full Court of the Federal Court; Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; and the principles identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; and notions of 'republication', discussed in the following decisions of the Federal Court; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 ; and SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611.
Case: VAF v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 123
Outcome: cited
In dealing with that issue, his Honour observed that in reliance upon VAF v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 123 , Stone and Finn JJ determined that when the Tribunal's reasons are evaluated for the purposes of s 424A(1) , the Court as a matter of judgment is required to isolate those elements of the Tribunal's decision which are the 'integral parts of the reasons'. His Honour also observed that having isolated the integral parts of the reasons for the Tribunal's decision and determined whether the decision rests upon information forming a part of the reason for affirming the decision, particulars of which, in breach of s 424A(1) , were not provided to the Appellant, and also rests on other grounds independent of that contravention and those grounds are not shown to be impeached, the decision of the Tribunal will remain a decision made according to law, having regard to any unimpeached independent ground. His Honour, in reaching this conclusion, relied upon VBAP of 2002 v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 965 ; SZDXC v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1306 ; MZWPK v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1256 ; and VCAD v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCAFC 1.
Case: VBAP of 2002 v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 965
Outcome: cited
In dealing with that issue, his Honour observed that in reliance upon VAF v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 123 , Stone and Finn JJ determined that when the Tribunal's reasons are evaluated for the purposes of s 424A(1) , the Court as a matter of judgment is required to isolate those elements of the Tribunal's decision which are the 'integral parts of the reasons'. His Honour also observed that having isolated the integral parts of the reasons for the Tribunal's decision and determined whether the decision rests upon information forming a part of the reason for affirming the decision, particulars of which, in breach of s 424A(1) , were not provided to the Appellant, and also rests on other grounds independent of that contravention and those grounds are not shown to be impeached, the decision of the Tribunal will remain a decision made according to law, having regard to any unimpeached independent ground. His Honour, in reaching this conclusion, relied upon VBAP of 2002 v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 965 ; SZDXC v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1306 ; MZWPK v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1256 ; and VCAD v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCAFC 1.
Case: SZDXC v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1306
Outcome: cited
In dealing with that issue, his Honour observed that in reliance upon VAF v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 123 , Stone and Finn JJ determined that when the Tribunal's reasons are evaluated for the purposes of s 424A(1) , the Court as a matter of judgment is required to isolate those elements of the Tribunal's decision which are the 'integral parts of the reasons'. His Honour also observed that having isolated the integral parts of the reasons for the Tribunal's decision and determined whether the decision rests upon information forming a part of the reason for affirming the decision, particulars of which, in breach of s 424A(1) , were not provided to the Appellant, and also rests on other grounds independent of that contravention and those grounds are not shown to be impeached, the decision of the Tribunal will remain a decision made according to law, having regard to any unimpeached independent ground. His Honour, in reaching this conclusion, relied upon VBAP of 2002 v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 965 ; SZDXC v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1306 ; MZWPK v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1256 ; and VCAD v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCAFC 1.
Case: MZWPK v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1256
Outcome: cited
In dealing with that issue, his Honour observed that in reliance upon VAF v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 123 , Stone and Finn JJ determined that when the Tribunal's reasons are evaluated for the purposes of s 424A(1) , the Court as a matter of judgment is required to isolate those elements of the Tribunal's decision which are the 'integral parts of the reasons'. His Honour also observed that having isolated the integral parts of the reasons for the Tribunal's decision and determined whether the decision rests upon information forming a part of the reason for affirming the decision, particulars of which, in breach of s 424A(1) , were not provided to the Appellant, and also rests on other grounds independent of that contravention and those grounds are not shown to be impeached, the decision of the Tribunal will remain a decision made according to law, having regard to any unimpeached independent ground. His Honour, in reaching this conclusion, relied upon VBAP of 2002 v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 965 ; SZDXC v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1306 ; MZWPK v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1256 ; and VCAD v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCAFC 1.
Case: VCAD v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCAFC 1
Outcome: cited
In dealing with that issue, his Honour observed that in reliance upon VAF v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 123 , Stone and Finn JJ determined that when the Tribunal's reasons are evaluated for the purposes of s 424A(1) , the Court as a matter of judgment is required to isolate those elements of the Tribunal's decision which are the 'integral parts of the reasons'. His Honour also observed that having isolated the integral parts of the reasons for the Tribunal's decision and determined whether the decision rests upon information forming a part of the reason for affirming the decision, particulars of which, in breach of s 424A(1) , were not provided to the Appellant, and also rests on other grounds independent of that contravention and those grounds are not shown to be impeached, the decision of the Tribunal will remain a decision made according to law, having regard to any unimpeached independent ground. His Honour, in reaching this conclusion, relied upon VBAP of 2002 v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 965 ; SZDXC v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1306 ; MZWPK v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCA 1256 ; and VCAD v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2005] FCAFC 1.
Case: Attorney-General of New Zealand v Ortiz and Others [1984] AC 1
Outcome: referred to
In Attorney-General of New Zealand v Ortiz and Others [1984] AC 1 , Lord Denning said at 15A-B: So far as England is concerned, whenever there is legislation providing that goods are to be forfeited for one cause or another, the law has always said that the forfeiture does not take effect until the goods are seized and that the title then relates back to the cause of forfeiture. If the owner or anyone else disputes the forfeiture, there are proceedings for condemnation. After condemnation, the title is perfected and can no longer be disputed by anyone. 34 Lord Ackner observed in the same case at 25C: An Act may provide for automatic forfeiture, or it may provide merely that the goods shall be liable to forfeiture if some further step is taken to that end.
Case: Banwell v Erceg (1984) 1 NSWLR 90
Outcome: referred to
In Banwell v Erceg (1984) 1 NSWLR 90, Yeldham J at 94 said: ... there is no reason to read down or qualify the words "in respect of any contravention" so that they relate only to proceedings for an offence in respect of such contravention. 30 In Olbers , French J considered s 106A of the FMA which made provision for the forfeiture of, inter alia, a boat used in an offence against various sections of that Act. French J rejected the submission that a conviction for the alleged offence upon which forfeiture arose was necessary before forfeiture under that section took effect: see [79]. His Honour concluded that satisfaction 'to a high degree of probability' that the offences had been committed was sufficient for s 106A of the FMA to take effect and it was not necessary for him to find that the offence had in fact been committed: see Olbers at [65]. 31 Applying the test of French J, if the Court is satisfied 'to a high degree of probability' that contraventions exist, such is sufficient to engage s 261A(1) of the Migration Act . It is not necessary that such 'contraventions' should constitute 'offences' for s 261A(1) to become operative. It follows that the entry into the migration zone of all Relevant Persons on the ship constituted contraventions of the Act. 32 Section 261A(1) of the Migration Act refers to things that are 'forfeited' to the Commonwealth. An analysis of the authorities referred to hereunder reveals that, depending upon the terms of the legislation, forfeiture may effect an immediate divestment of property or a divestment only after seizure has occurred.
Case: Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108
Outcome: referred to
In Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108 (applied by the Full Court in Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449) Rath J considered provisions of the Customs Act concerning the time at which the forfeiture occurred (see 114-115) and found at 114 that title passed to the Crown 'immediately upon a cause of forfeiture arising, without either seizure or condemnation. Such a strict construction is consistent with decisions on customs legislation both in England and Australia ( The Annandale (6); Burton v. Honan (7))' . His Honour continued: The terms "forfeiture", "seizure" and "condemnation" are not defined in the Act. They are well-known terms in customs legislation. The term "condemnation" refers not to a proceeding which has the effect of vesting title in the Crown, but to a proceeding which determines that upon some cause previously arising title had vested in the crown (Burton v. Honan (8); Willey v. Synan (9)).
Case: Burton v Honan [1952] HCA 30 ; (1952) 86 CLR 169
Outcome: referred to
In Burton v Honan [1952] HCA 30 ; (1952) 86 CLR 169 at 176 Dixon CJ said of s 229 of the Customs Act : On authority it is clear that under the provisions of s. 229 , provided the facts exist which justify a forfeiture, the title to the goods vests in the Crown when the forfeiture takes place in consequence of the occurrence of the facts. No further proceedings are requisite to make title, although of course further proceedings may be necessary either to vindicate the title of the Crown or to exclude the claim of some person asserting a right to the goods. 48 In response to the submissions of Tran, it is not a requirement of the Migration Act that notice of forfeiture be given to Tran. Section 261A has automatic effect upon the occurrence of the events prescribed in such section. It is not relevant to the automatic forfeiture that each of the Relevant Persons was subsequently granted a visa to remain in Australia, nor is it relevant that Tran was not convicted of an offence under s 232A of the Migration Act resulting from him establishing a defence under s 10.3(1) of the Criminal Code of a sudden and extraordinary emergency. Quite apart from the fact that an 'offence' is not required to enliven s 261A, the basis of the acquittal was an exculpatory provision, and contraventions exist under ss 42(1) , 232A and 233 of the Migration Act by virtue of the ship's entry into the Migration Zone. The contraventions arise from the action of either Tran or others on board the ship upon such entry, and it is the contraventions which result in forfeiture.
Case: De Keyser v British Railway Traffic and Electric Company, Limited [1936] 1 KB 224
Outcome: referred to
The concept of forfeiture followed by condemnation is not novel to the Migration Act . In De Keyser v British Railway Traffic and Electric Company, Limited [1936] 1 KB 224 Lord Hewart CJ in referring to the term 'forfeited' in s 202 of the Customs Consolidation Act 1876 (UK) said at 230: There may be, where the owner of the property or other person authorized by him gives notice of a claim, an inchoate forfeiture which is to be completed by the combined forfeiture and condemnation contemplated by s. 226.
Case: Dimella Constructions Pty. Ltd. v Stocker and Stocker (1976) 14 SASR 215
Outcome: cited
In Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 Miles CJ said at 242: A contravention in the ordinary sense of that word involves an infringement or violation of a rule or standard or norm. A contravention of an Act does not necessarily involve the commission of an offence unless the Act or the law otherwise makes it so: cp Dimella Constructions Pty Ltd v Stocker (1976) 14 SASR 215.
Case: Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6 ; (1994) 179 CLR 297
Outcome: referred to
The above decision has been applied subsequently: see Olbers . See also Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6 ; (1994) 179 CLR 297 at 306-307 where the majority said: Not every Commonwealth law with respect to the acquisition of property falls within s. 51(xxxi) of the Constitution . It may be outside that paragraph because, although it effects an acquisition of property, it is a law of a kind that is clearly within some other head of legislative power. That is the case with a law imposing taxation or a law providing for the sequestration of the estate of a bankrupt. Or it may be outside s. 51(xxxi) because it effects an acquisition of a kind that does not permit of just terms, as in the case of a law imposing a penalty by way of forfeiture. And, it may fall outside s. 51(xxxi) because it cannot fairly be characterized as a law for the acquisition of property for a purpose in respect of which the Parliament has power to make laws. That will generally be the case with laws directed to resolving competing claims or providing for "the creation, modification, extinguishment or transfer of rights and liabilities as an incident of, or a means for enforcing, some general regulation of the conduct, rights and obligations of citizens in relationships or areas which need to be regulated in the common interest".
Case: Nguyen v R [2005] WASCA 22
Outcome: referred to
On 16 December 2004 the Supreme Court of Western Australia Court of Criminal Appeal allowed the appeal of Mr Nguyen ( Nguyen v R [2005] WASCA 22). 23. On or about 22 March 2005 the Crown conceded the Applicant's appeal on the basis of the decision in Nguyen v R and the Applicant's conviction was quashed. 24. By 2005, all of the Relevant Persons were granted Protection (Class XA) visas except for two who were granted Refugee and Humanitarian (Class XB) visas.
Case: Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449
Outcome: followed
In Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108 (applied by the Full Court in Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449) Rath J considered provisions of the Customs Act concerning the time at which the forfeiture occurred (see 114-115) and found at 114 that title passed to the Crown 'immediately upon a cause of forfeiture arising, without either seizure or condemnation. Such a strict construction is consistent with decisions on customs legislation both in England and Australia ( The Annandale (6); Burton v. Honan (7))' . His Honour continued: The terms "forfeiture", "seizure" and "condemnation" are not defined in the Act. They are well-known terms in customs legislation. The term "condemnation" refers not to a proceeding which has the effect of vesting title in the Crown, but to a proceeding which determines that upon some cause previously arising title had vested in the crown (Burton v. Honan (8); Willey v. Synan (9)).
Case: Powers v Maher [1959] HCA 52 ; (1959) 103 CLR 478
Outcome: referred to
In Powers v Maher [1959] HCA 52 ; (1959) 103 CLR 478 Kitto J, in referring to goods seized pursuant to s 229 of the Customs Act , said at 483: As to this, it may be observed that "forfeited" is an ambiguous word: it may mean either taken from a man or liable to be taken from him.
Case: Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237
Outcome: referred to
In Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 Miles CJ said at 242: A contravention in the ordinary sense of that word involves an infringement or violation of a rule or standard or norm. A contravention of an Act does not necessarily involve the commission of an offence unless the Act or the law otherwise makes it so: cp Dimella Constructions Pty Ltd v Stocker (1976) 14 SASR 215.
Case: The Annandale (1877) 2 PD 218
Outcome: cited
In Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108 (applied by the Full Court in Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449) Rath J considered provisions of the Customs Act concerning the time at which the forfeiture occurred (see 114-115) and found at 114 that title passed to the Crown 'immediately upon a cause of forfeiture arising, without either seizure or condemnation. Such a strict construction is consistent with decisions on customs legislation both in England and Australia ( The Annandale (6); Burton v. Honan (7))' . His Honour continued: The terms "forfeiture", "seizure" and "condemnation" are not defined in the Act. They are well-known terms in customs legislation. The term "condemnation" refers not to a proceeding which has the effect of vesting title in the Crown, but to a proceeding which determines that upon some cause previously arising title had vested in the crown (Burton v. Honan (8); Willey v. Synan (9)).