mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144
Outcome: followed
respondent's response to this contention is, in my opinion, correct. The applicant claimed that his conditions were related to service through a connection with his duodenal ulcer and, in those circumstances, the Tribunal was required to determine whether his duodenal ulcer was relevantly related to his defence service: Langley v Repatriation Commission [1993] FCA 299 ; (1993) 43 FCR 194 at 201 per Lockhart and Beazley JJ; McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 151 [20] per Branson, Sundberg and Kenny JJ. The previous acceptance of liability for the applicant's duodenal ulcer under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) did not prevent the Tribunal from considering this matter. The cases to which the applicant referred do not support his argument ( Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and Power v Comcare (1998) 89 FCR 514). Ground 2
Case: Power v Comcare (1998) 89 FCR 514
Outcome: cited
respondent's response to this contention is, in my opinion, correct. The applicant claimed that his conditions were related to service through a connection with his duodenal ulcer and, in those circumstances, the Tribunal was required to determine whether his duodenal ulcer was relevantly related to his defence service: Langley v Repatriation Commission [1993] FCA 299 ; (1993) 43 FCR 194 at 201 per Lockhart and Beazley JJ; McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 151 [20] per Branson, Sundberg and Kenny JJ. The previous acceptance of liability for the applicant's duodenal ulcer under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) did not prevent the Tribunal from considering this matter. The cases to which the applicant referred do not support his argument ( Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and Power v Comcare (1998) 89 FCR 514). Ground 2
Case: Repatriation Commission v Cornelius [2002] FCA 750
Outcome: cited
Deputy President referred to the definition of "hypertension" in clause 2(b) and the definition of the expression "being obese" in clause 8. He also referred to the meaning of "clinical onset" as articulated in the cases ( Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; Repatriation Commission v Cornelius [2002] FCA 750). It is clear from the Deputy President's reasons that he was aware of the blood pressure reading in March 1973 and that he took it into account (at [67]-[68]). I also agree with the respondent's submission that the Deputy President's analysis of the authorities ( Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; Repatriation Commission v Cornelius [2002] FCA 750) was correct and it was open to him to find that the clinical onset of the applicant's hypertension was 24 August 1984. Ground 4
Case: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82
Outcome: distinguished
Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 (" Deledio ") was a decision of the Full Court of this Court. The case concerned the proper approach to the application of s 120(1) and (3) of the Act. By contrast, this case involved the application of s 120(4) and s 120B(3) of the Act. Deledio is therefore of no direct assistance to the resolution of the issues in this case. This statement of the relevant principles is correct: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 ; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21 ; (1979) 41 FLR 338. Deledio does not provide support for the applicant's submission. Ground 7 The Deputy President was not required to consider the matter in s 120B(3)(a) in circumstances where he was satisfied that s 120B(3)(b) had not been met. Oliver and Deledio do not support the applicant's submission for reasons previously given. Ground 9 The contention in this ground of appeal is that the Tribunal erred in law in determining that the decision under review as varied by the Board was affirmed. This ground of appeal does not raise a question of law. Again, Oliver , Deledio and O'Brien do not support the applicant's submissions. Ground 13 This ground of appeal is without content. No particulars are provided as to the test said to have been applied by the Tribunal, the reasons it was the wrong test, the details of the Tribunal's application of the SoPs and the statements made from the bar table. This ground of appeal does not raise a question of law. Reference was made to Oliver , Deledio and O'Brien but, for reasons previously given, those cases do not advance the applicant's submission. Ground 14 The contention in this ground of appeal is that the Tribunal erred in law by failing to follow and rely upon the decision of this Court in Deledio . Deledio is not relevant for reasons previously given. Ground 18 Again, this ground of appeal does not raise a question of law, and I agree with the respondent's submission that the Deputy President did not find clinical onset of anxiety disorder in 1973 and therefore there is no proper basis for this contention. Again, Deledio does not support the applicant's submission for the reasons previously given. Ground 24 The contention in this ground of appeal is that the Tribunal erred in law in failing to find that the clinical onset of the applicant's anxiety disorder was 20 August 1973. Again, the applicant makes reference to the fact that the applicant was prescribed Librax on 20 August 1973. This ground of appeal does not raise a question of law. I have previously dealt with the merits of the ground in relation to ground 22. Ground 25
Case: Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581
Outcome: cited
meaning of "a question of law" in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been considered by this Court in a number of cases. In addition, the requirements in the Rules of Court as to the contents of a notice of appeal under s 44(1) (see O 53 rr 2, 3 and Form numbered 55A) have been considered. It is not necessary for me to discuss the cases: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 ; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 ; HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34 ; (2006) 149 FCR 291.
Case: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422
Outcome: distinguished
Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 (" O'Brien ") was a decision of the High Court and it involved the interpretation of s 47(2) of the Repatriation Act 1920 (Cth) which subsection provided for a test of whether the determining body was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. An observation by Gibbs CJ, Wilson and Dawson JJ (at 430) on the facts of that case (upon which the applicant relied) is of no assistance to the resolution of the issues in this case. Ground 1 The contention in this ground of appeal is that the Tribunal had no jurisdiction or power to make a determination with respect to the applicant's "previously accepted compensable defence-caused duodenal ulcer" where neither the respondent nor the Board had made a determination with respect to that matter. The Deputy President's finding was as follows: "In summary, the SoP does not uphold the contention that the ulcer was, on the balance of probabilities, connected with Mr Kowalski's service, and I am not satisfied that his duodenal ulcer arose out of or was attributable to his eligible defence service, or that it would not have occurred but for that service." The contention in this ground of appeal is that the Tribunal erred in law in determining that the decision under review as varied by the Board was affirmed. This ground of appeal does not raise a question of law. Again, Oliver , Deledio and O'Brien do not support the applicant's submissions. Ground 13 This ground of appeal is without content. No particulars are provided as to the test said to have been applied by the Tribunal, the reasons it was the wrong test, the details of the Tribunal's application of the SoPs and the statements made from the bar table. This ground of appeal does not raise a question of law. Reference was made to Oliver , Deledio and O'Brien but, for reasons previously given, those cases do not advance the applicant's submission. Ground 14
Case: Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562
Outcome: cited
Next, the applicant contends that the Tribunal erred in failing to take into account the possibility that the applicant's human rights could be violated. He says that the Tribunal failed to consider whether, in cancelling his visa, the applicant would be taken to a detention centre and would be subjected to arbitrary detention. He says that the Tribunal should have taken into account the possibility that cancellation of his visa would have exposed him to a violation of Australian domestic criminal law, namely, arbitrary detention. There is no substance in this ground, in my view. It is precluded by the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562. 22 That brings me to the second ground, namely, the question of whether or not the Tribunal misdirected itself in the approach that it took. In order to deal with this ground, it is necessary to say something more about the Tribunal's reasons. 23 The Tribunal began by describing the applicant briefly, and referring to the decision of the delegate and the hearing before the Tribunal. The Tribunal then stated the issues in the case as follows: (1) whether the applicant passes the character test, given his substantial criminal record; and (2) if not, whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the delegate to cancel the applicant's visa. It may be significant that the Tribunal characterised the issue as whether it should exercise a discretion to set aside or affirm the decision. In a sense, that is unexceptionable in so far as the Tribunal, once it has made a decision, must either set aside, affirm, or vary the decision. However, the review of a delegate's decision by the Tribunal involves the Tribunal standing in the shoes of the Minister, so to speak, and exercising de novo the discretion that is conferred by section 501.
Case: Doukmak v Minister for Immigration and Multicultural Affairs [2001] FCA 1821 ; 114 FCR 432
Outcome: followed
The question is whether the Tribunal wrongly interpreted s 501(2) as conferring a discretion not to cancel a visa as distinct from conferring a discretion to cancel the visa. Section 501(2) is permissive. It confers a power to cancel a visa in the exercise of the Minister's discretion, or, in the present case, the Tribunal's discretion. There is a difference between power and obligation. The question is whether the Tribunal considered that the section obliged it to cancel the applicant's visa, unless it was satisfied that it should not cancel the visa (see Ross v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1716 ; 107 FCR 1 at [27] to [29], and Doukmak v Minister for Immigration and Multicultural Affairs [2001] FCA 1821 ; 114 FCR 432 at [50] and [51]).
Case: Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 180
Outcome: cited
Next, in relation to this ground, the applicant appears to advance a contention that having regard to the provisions of s 201 , the use of s 501 is for an improper use or an act of bad faith. The applicant says that, by slavishly following policy, and applying s 501 in matters where s 201 could apply, there has been an error in so far as discretionary power has been exercised in accordance with a rule or policy without regard to the merits of the applicant's case, and without availing the applicant of a process by which he could convince the decision-maker to consider his matter under s 201. I consider that this argument is precluded by the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370: see also Evans v Minister [2006] FCAFC 180.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370
Outcome: cited
Next, in relation to this ground, the applicant appears to advance a contention that having regard to the provisions of s 201 , the use of s 501 is for an improper use or an act of bad faith. The applicant says that, by slavishly following policy, and applying s 501 in matters where s 201 could apply, there has been an error in so far as discretionary power has been exercised in accordance with a rule or policy without regard to the merits of the applicant's case, and without availing the applicant of a process by which he could convince the decision-maker to consider his matter under s 201. I consider that this argument is precluded by the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370: see also Evans v Minister [2006] FCAFC 180.
Case: Ross v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1716 ; 107 FCR 1
Outcome: cited
The question is whether the Tribunal wrongly interpreted s 501(2) as conferring a discretion not to cancel a visa as distinct from conferring a discretion to cancel the visa. Section 501(2) is permissive. It confers a power to cancel a visa in the exercise of the Minister's discretion, or, in the present case, the Tribunal's discretion. There is a difference between power and obligation. The question is whether the Tribunal considered that the section obliged it to cancel the applicant's visa, unless it was satisfied that it should not cancel the visa (see Ross v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1716 ; 107 FCR 1 at [27] to [29], and Doukmak v Minister for Immigration and Multicultural Affairs [2001] FCA 1821 ; 114 FCR 432 at [50] and [51]).
Case: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172
Outcome: cited
The applicant also advanced a contention that the possibility that cancellation of a visa and subsequent removal of a non-citizen may be punitive. However, the exercise of the discretion under s 501 is not directed to the punishment of a visa holder. The possible consequence of deterring other non-citizens from committing similar offences is not an irrelevant consideration in the exercise of the discretion conferred by s 501(2) of the Act, in deciding whether a visa holder should be permitted to remain in Australia, see Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [44] .
Case: Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd 2 [1971] NSWLR 278
Outcome: cited
In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 437-439 [659] - [666] , Tamberlin J admitted evidence of this kind in judicial review proceedings so that the Court was in the position to understand the particular meaning of words used in the specialised area concerned. He applied what Street J had earlier held in Ancher, Mortlock, Murray &amp; Woolley Pty Ltd v Hooker Homes Pty Ltd 2 [1971] NSWLR 278 at 286 that an argumentative process between experts enables the Court to proceed more readily and thus appreciate the relevant issue for decision. It can also illuminate the application of a specialised usage of words in the context.
Case: Australian Communist Party v The Commonwealth [1951] HCA 5 ; (1951) 83 CLR 1
Outcome: cited
That reasoning dealt with what the Commission had provided in pars 10(f) and (g). But it avoided the real possibility that an inactive service with a soft dial tone might not be an ULLS service at all. Serviceability is one thing, existence another. As Fullagar J observed in Australian Communist Party v The Commonwealth [1951] HCA 5 ; (1951) 83 CLR 1 at 258: "A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse. A power to make a proclamation carrying legal consequences with respect to a lighthouse is one thing: a power to make a similar proclamation with respect to anything which in the opinion of the Governor-General is a lighthouse is another thing." 173 In the way it was expressed, the Commission's final determination did not adapt the provisions of Code 569, because it presupposed the fundamental matter that an ULLS transfer request had to determine, namely, the existence of an ULLS to transfer. This created a fundamental uncertainty both as to how the final determination should be construed and the methodology for Telstra to follow postulated in par 10. If the presupposition is wrong in respect of a request made by Optus, will Telstra be in breach of the final determination since it can never supply the service over the identified pathway used by the soft dial tone? Alternatively, will Telstra be entitled to reject the request in any event because the omission of essential information in the ULLS transfer request process in cl 11 of Code 569 and or cl 13 of Guideline 587 (namely the ULLS identifier) entitled it to do so? 174 Neither scenario makes the final determination certain. The presupposition takes the place of the processes in cl 11 of Code 569 without establishing that the process in par 10(a) can be applied to a particular line with a soft dial which is not, in fact, an ULLS. And, notwithstanding that par 10(a) treats every request where a soft dial tone is present as an ULLS transfer request, if Telstra can reject each such request because it does not give an ULLS identifier, the process stipulated in the final determination is pointless.
Case: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: referred to
In my opinion, some of the contentious material was admissible to prove the meaning of technical terms used in the final determination, Code 569 and Guideline 587 (discussed below at Ch 7) in the context of the telecommunications industry: Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 398-399 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. Evidence as to the meaning of technical terms used in an administrative decision is admissible so that the Court is placed in the context of understanding the natural and ordinary meaning of those words as they would be understood by persons familiar with their use: see also Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 566 [458] . Such evidence is capable of establishing that the decision-maker erred in its understanding of the technical matters with which its decision dealt. In Australian Retailers Association 148 FCR at 566 [458], Weinberg J held that such evidence is admissible where an administrative decision is challenged on the ground that the decision-maker lacked jurisdiction to make it because that was dependent on an actual state of facts that did not exist, or the decision-maker based the decision on a finding of a particular fact that did not exist. He said: "If additional evidence is available, in cases reliant upon such grounds, there is no reason in principle why such evidence should not also be admissible where the ground is couched in terms of unreasonableness." 106 A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.
Case: Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127 ; (2002) 124 FCR 316
Outcome: cited
Optus argued that the proper construction of par 10(a) required an assumption that the requirements of cl 11.4 of Code 569 were satisfied once the conditions set out in par 10(a) were met. In other words Optus argued that the final determination required Telstra to treat the provision of the information specified in par 10(a) by itself, as an ULLS transfer request with the necessary consequence that Telstra would then process it as if it were valid under cl 11.5 of Code 569. It contended that the final determination should be construed in a practical manner which required "... Telstra to modify its existing procedures to exclude the kind of validation processes that are specific to transfers between access seekers". It referred to the practical approach in construction of instruments enunciated by Lord Reid in Gill v Donald Humberstone &amp; Co Ltd [1963] 1 WLR 929 at 933-934 and applied by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127 ; (2002) 124 FCR 316 at 328-329 [37] - [38] ; see too per Stein and Giles JJA in Langton v Independent Commission against Corruption (2000) 49 NSWLR 164 at 167-168 [12]-[13]. Lord Reid had said that instruments which were addressed to practical people skilled in a particular trade or industry ought be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions of the kind appropriate for the construction of a statute.
Case: Avon Downs Pty Limited v Commissioner for Taxation [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: referred to
In Avon Downs Pty Limited v Commissioner for Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 Dixon J discussed judicial review of an administrative decision for which the decision-maker did not have to give reasons. He said: "The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."
Case: Bank of New South Wales v The Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1
Outcome: cited
I am of opinion that par 10(e) could be severed because the rest of the final determination would not operate differently without it: Bank of New South Wales v The Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1 at 371 per Dixon J; Victoria v The Commonwealth (Industrial Relations Act Case) [1996] HCA 56 ; (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. The relevance of par 10(e) is that it confirms the incorrect approach which the Commission took as to the significance of a soft dial tone in par 10(a). Severance of par 10(e) would not make the final determination any more meaningful or give it validity.