mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Outcome: referred to
The reasons that the Minister gave for the decision to cancel the applicant's visa under s 501(3) do not provide any sufficient basis for an inference of improper purpose. The cogency and weight of the material before the Minister was for the Minister to assess. Provided there was a probative basis for the decision, it is not open to the Court to second-guess the Minister in this regard and, in so doing, impute an improper purpose. Further, the fact that the Minister's decision followed almost immediately on the decision of the Migration Review Tribunal cannot be regarded as indicative of improper purpose since the Minister's powers under s 501 of the Migration Act are separate and distinct from those of the Tribunal: see Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408-09 per Heerey, Lindgren and Emmett JJ, approved in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 535 per Gleeson CJ and Gummow J; also 565 per Hayne J. The applicant's reference to "an international treaties obligations assessment" is, as the respondent observes, irrelevant in the present connection.
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
The reasons that the Minister gave for the decision to cancel the applicant's visa under s 501(3) do not provide any sufficient basis for an inference of improper purpose. The cogency and weight of the material before the Minister was for the Minister to assess. Provided there was a probative basis for the decision, it is not open to the Court to second-guess the Minister in this regard and, in so doing, impute an improper purpose. Further, the fact that the Minister's decision followed almost immediately on the decision of the Migration Review Tribunal cannot be regarded as indicative of improper purpose since the Minister's powers under s 501 of the Migration Act are separate and distinct from those of the Tribunal: see Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408-09 per Heerey, Lindgren and Emmett JJ, approved in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 535 per Gleeson CJ and Gummow J; also 565 per Hayne J. The applicant's reference to "an international treaties obligations assessment" is, as the respondent observes, irrelevant in the present connection.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505
Outcome: cited
Section 501 of the Migration Act confers a very wide discretion, which permits the Minister to take into account a variety of matters, providing they are within the subject-matter, scope and purpose of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505 at 523 per Kiefel and Bennett JJ; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 310 per Tamberlin, Sackville and Stone JJ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 595 per Ryan, Lander and Crennan JJ; and Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402 at 423 per Ryan and Tamberlin JJ. In exercise of the discretion that s 501 confers, the Minister may consider such matters as the protection of the community and community expectations. As the discussion concerning ground 1 shows, the Minister had a basis for regarding as relevant the fact that the applicant had not attempted to dispute the allegations with the authorities in China. The consideration was not irrelevant in the sense that it did not lie within the subject-matter, scope and purpose of the statutory power. It was for the Minister to determine whether she would have regard to the consideration and, if so, how much weight should be given to it.
Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292
Outcome: cited
Section 501 of the Migration Act confers a very wide discretion, which permits the Minister to take into account a variety of matters, providing they are within the subject-matter, scope and purpose of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505 at 523 per Kiefel and Bennett JJ; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 310 per Tamberlin, Sackville and Stone JJ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 595 per Ryan, Lander and Crennan JJ; and Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402 at 423 per Ryan and Tamberlin JJ. In exercise of the discretion that s 501 confers, the Minister may consider such matters as the protection of the community and community expectations. As the discussion concerning ground 1 shows, the Minister had a basis for regarding as relevant the fact that the applicant had not attempted to dispute the allegations with the authorities in China. The consideration was not irrelevant in the sense that it did not lie within the subject-matter, scope and purpose of the statutory power. It was for the Minister to determine whether she would have regard to the consideration and, if so, how much weight should be given to it.
Case: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580
Outcome: cited
Section 501 of the Migration Act confers a very wide discretion, which permits the Minister to take into account a variety of matters, providing they are within the subject-matter, scope and purpose of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505 at 523 per Kiefel and Bennett JJ; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 310 per Tamberlin, Sackville and Stone JJ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 595 per Ryan, Lander and Crennan JJ; and Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402 at 423 per Ryan and Tamberlin JJ. In exercise of the discretion that s 501 confers, the Minister may consider such matters as the protection of the community and community expectations. As the discussion concerning ground 1 shows, the Minister had a basis for regarding as relevant the fact that the applicant had not attempted to dispute the allegations with the authorities in China. The consideration was not irrelevant in the sense that it did not lie within the subject-matter, scope and purpose of the statutory power. It was for the Minister to determine whether she would have regard to the consideration and, if so, how much weight should be given to it.
Case: Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402
Outcome: cited
Section 501 of the Migration Act confers a very wide discretion, which permits the Minister to take into account a variety of matters, providing they are within the subject-matter, scope and purpose of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505 at 523 per Kiefel and Bennett JJ; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 310 per Tamberlin, Sackville and Stone JJ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 595 per Ryan, Lander and Crennan JJ; and Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402 at 423 per Ryan and Tamberlin JJ. In exercise of the discretion that s 501 confers, the Minister may consider such matters as the protection of the community and community expectations. As the discussion concerning ground 1 shows, the Minister had a basis for regarding as relevant the fact that the applicant had not attempted to dispute the allegations with the authorities in China. The consideration was not irrelevant in the sense that it did not lie within the subject-matter, scope and purpose of the statutory power. It was for the Minister to determine whether she would have regard to the consideration and, if so, how much weight should be given to it.
Case: Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1
Outcome: referred to
Further, the Wednesbury unreasonableness ground, as stated by Brennan CJ in Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36, relies upon the proposition that "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised": see also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 per Gummow J. Where a body fails to act in this way, the body acts beyond power. I am inclined to accept that, as the respondent submitted, the applicant's challenge is directed to a strand in the process of the Minister's reasoning, as opposed to the actual exercise of discretion. That is, the nature of the applicant's challenge is not one that falls within the principle of Wednesbury unreasonableness.
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
Further, the Wednesbury unreasonableness ground, as stated by Brennan CJ in Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36, relies upon the proposition that "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised": see also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 per Gummow J. Where a body fails to act in this way, the body acts beyond power. I am inclined to accept that, as the respondent submitted, the applicant's challenge is directed to a strand in the process of the Minister's reasoning, as opposed to the actual exercise of discretion. That is, the nature of the applicant's challenge is not one that falls within the principle of Wednesbury unreasonableness.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: referred to
As the respondent contended, however, the principle in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 was applicable to this proceeding and, unless there were special circumstances shown, the applicant was estopped from bringing this further judicial review proceeding. 61 It will be recalled that the applicant had previously sought judicial review of the Minister's cancellation and non-revocation decisions in the Federal Magistrates Court on the ground that the decisions disclosed jurisdictional error in that the Minister: (1) failed to take into account a relevant matter; and (2) breached the rules of natural justice. Further, the applicant alleged jurisdictional error in that: Given the circumstances surrounding the allegations against the Applicant and the absence over a seven and a half year period of any attempt to execute the warrants or initiate extradition proceedings, each of the decisions amounted to a misuse of the cancellation power. 62 A Federal Magistrates dismissed the judicial review application on 26 May 2006, and the applicant did not seek to appeal against the judgment. In the circumstances, the Anshun principle applied: see Anshun [1981] HCA 45 ; 147 CLR 589 at 602. The applicant submitted, however, that he ought not be precluded from raising new grounds of judicial review as there were "special circumstances" within the meaning of the Anshun principle to justify him doing so. 63 These special circumstances included that: (a) There was no special disadvantage for the respondent but there was a significant adverse consequence for the applicant, being "a real risk to his life and liberty". (b) The Minister did not take into account the applicant's concerns, including his complaints about the application of s 503A, although the applicant had raised them with the Minister. (c) There was a public interest in ensuring that the process of cancellation was a fair one. In this case, the Minister's decision was vitiated as a "disguised extradition" or for unreasonableness. (d) The Minster and/or her department became aware of these serious allegations in 1998 but they were not put to the applicant until 2004. (e) The applicant had unsuccessfully sought redress through other legal avenues. (f) The applicant had been in immigration detention since May 2005 and had been diagnosed as having a major depressive disorder.
Case: Wong v Minister for Immigration and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10
Outcome: referred to
For the following reasons, I consider that this submission should be rejected. First, as the Court said in Wong v Minister for Immigration and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 at 20: There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the executive government and its representatives, but only to individuals. This is because the executive is a respondent by force of statute or of the Constitution and is not subject to the same psychological burden that may weigh on individual litigants; they cannot be "vexed" in the same way by instigation of subsequent proceedings. That may be a more appropriate basis, namely that of accepted public policy, to ensure that representatives of the executive government cannot rely on the principle of Anshun estoppel to frustrate, in effect, the intended legislative mandate. However that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action.
Case: BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221
Outcome: referred to
Secondly, the grounds of review upon which the applicant would seek to rely were available to him when the Federal Magistrate heard the earlier proceeding. There was no relevant uncertainty in the law, which might explain and justify the failure to raise them at the earlier time: compare BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [31] - [37] per Carr, Tamberlin and Conti JJ. Further, although the applicant's written submissions questioned the application of s 503A, the applicant abandoned this argument at the hearing: see also Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450 at [72] - [91] per Jacobson and Bennett JJ. It is also to be borne in mind that, in the Federal Magistrates Court, although not the subject of oral submissions, the applicant's amended application included a ground that resembled the "disguised extradition" ground, which the applicant sought to raise in this proceeding (see [61] above).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450
Outcome: cited
Secondly, the grounds of review upon which the applicant would seek to rely were available to him when the Federal Magistrate heard the earlier proceeding. There was no relevant uncertainty in the law, which might explain and justify the failure to raise them at the earlier time: compare BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [31] - [37] per Carr, Tamberlin and Conti JJ. Further, although the applicant's written submissions questioned the application of s 503A, the applicant abandoned this argument at the hearing: see also Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450 at [72] - [91] per Jacobson and Bennett JJ. It is also to be borne in mind that, in the Federal Magistrates Court, although not the subject of oral submissions, the applicant's amended application included a ground that resembled the "disguised extradition" ground, which the applicant sought to raise in this proceeding (see [61] above).
Case: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 234 ALR 114
Outcome: cited
Given that the applicant is estopped from bringing this application, it is probably unnecessary to say much about the time limits made applicable by the order remitting the proceeding to this Court. The applicant applied in the High Court for orders to show cause why writs of certiorari, prohibition and mandamus should not issue, although he did not include a claim for mandamus in his amended application filed on 4 August 2008. The High Court Rules 2004 relevantly limit the time for making application for certiorari and mandamus. Rule 25.06.01 provides that an application for an order to show cause why a writ of certiorari should not issue must be made within six months after the date of the relevant judgment, order, conviction or other proceeding. Rule 25.07.2 provides that an application for an order to show cause why a writ of mandamus should not issue to a judicial tribunal must be made within two months of the date of the refusal to hear or within such time as is, under special circumstances, allowed by the Court or a Justice. Assuming that the time limits in rule 25.06.01 and 25.07.2 apply (see Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 234 ALR 114 at 120 indicating that r 25.07.2 does not), they may be enlarged under rule 4.02.
Case: Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: referred to
The application was made in the High Court some two years after the Minister made her decision not to revoke her cancellation decision. The applicant conceded that he had given no satisfactory explanation for the delay: see Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495 per McHugh J. Further, the applicant did not proffer any explanation as to why the grounds pursued in this proceeding were not pursued in the earlier proceeding in the Federal Magistrates Court. Just as importantly, as the forgoing discussion shows, the prospects of success on the application are not such as to warrant an extension of time. An extension of time for seeking relief of this kind "can only be granted if it is necessary to do justice between the parties": see Marks 177 ALR at 495. An extension of time is not necessary to do justice in this case. Accordingly, I would refuse the application for an enlargement of time. 70 For the reasons stated, the application should be dismissed, with costs. Application to enlarge time should also be refused. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 5 December 2008 Counsel for the Applicant: Mr J Montgomery SC with Ms N Karapanagiotidis Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondent: Mr P Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 July 2008 Date of Judgment: 5 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1838.html
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678
Outcome: cited
Mr Bannon submitted that this construction of s 45(2)(b)(ii) of the TP Act was supported by several matters. &#8226; First, s 45(4) of the TP Act, a deeming provision, assumes that a corporation which is potentially the subject of an allegation that it has contravened s 45(2)(b)(ii) must have been party to the original arrangement. &#8226; Secondly, the definition of ' give effect to ' in s 4 of the TP Act also appears to be drafted on the assumption that only a party to the arrangement can do an act in pursuance of or in accordance with a provision of the arrangement. &#8226; Thirdly, the authorities indicate that a corporation can give effect to a provision in an arrangement independently of that corporation's motive. It would create an unrealistic burden on corporations (so Mr Bannon argued) if their conduct could give effect to an anti-competitive provision in an arrangement without the corporation being a party to the arrangement or realising that its actions constitute a contravention of the TP Act: Tradestock Pty Ltd v TNT (Management) Pty Ltd (1978) 32 FLR 420, at 432, per Smithers J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 , at [294], per Merkel J.
Case: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241
Outcome: cited
It is sometimes appropriate to decide a pure question of law on a strike out motion: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241. But the authorities do not suggest that a court is bound to do so ( Morgan v Union Shipping (Nz) Ltd [2001] NSWSC 325 , at [9], per Sperling J and authorities cited there). Mr Bannon did not submit otherwise.
Case: Morgan v Union Shipping (Nz) Ltd [2001] NSWSC 325
Outcome: cited
It is sometimes appropriate to decide a pure question of law on a strike out motion: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241. But the authorities do not suggest that a court is bound to do so ( Morgan v Union Shipping (Nz) Ltd [2001] NSWSC 325 , at [9], per Sperling J and authorities cited there). Mr Bannon did not submit otherwise.
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236
Outcome: referred to
None of the Patrick Respondents is an individual. Mr Bathurst, however, argued that the problems identified by Mr Hutley are even more acute so far as Mr Burgess and other individual respondents are concerned. He also pointed out that there is no allegation that Mr Burgess was aware of the precise material facts and circumstances constituting the contraventions of s 45(2): see Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 , at 283 [162], per curiam. 66 In answer to these submissions, Mr Burnside used the pleaded allegations of accessorial liability against Mr Burgess to illustrate the argument. Mr Burnside contended that a number of specific allegations are made about the extent of Mr Burgess' knowledge of relevant matters. In response to a question, Mr Burnside stated that the case against Mr Burgess does not depend on which of the P&amp;O Respondents happened to be a party to the pleaded arrangements, or to have given effect to the provisions of the pleaded arrangements. 67 I expressed the view ( Ts 136 ) that if this was the ACCC's case, the Statement of Claim should be amended to make it quite clear. The pleading should explicitly allege that by reason of specific matters known to Mr Burgess, he aided and abetted, or was knowingly concerned in, any contraventions that might be established against either or both of the P&amp;O Respondents. The pleading should also identify unambiguously the matters known to Mr Burgess and the other individual respondents that are said to show that each was aware of the material facts and circumstances constituting the contraventions of s 45(2) of the TP Act.