mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Kasupene and Minister for Immigration &amp; Citizenship [2008] AATA 766
Outcome: cited
He first entered Australia in October 1992 and left within two weeks. He again entered Australia in August 2000. On the latter occasion he was granted a special category visa. Both before and after entering Australia the Applicant committed a number of criminal offences. His visa was cancelled by a delegate of the Minister on 5 June 2008 pursuant to s 501(2) of the Migration Act 1958 (Cth). He appealed that decision to the Administrative Appeals Tribunal and on 29 August 2008 the Tribunal affirmed the decision: Re Kasupene and Minister for Immigration &amp; Citizenship [2008] AATA 766. 3 On 23 September 2008 the Applicant filed a Notice of Appeal in this Court and an Affidavit . The Notice of Appeal -- read together with the Affidavit -- identified the two grounds of appeal sought to be relied upon as being: (i) a failure to have regard to a relevant consideration, namely the hardship that the decision would occasion to the Applicant; and (ii) a failure on the part of the Tribunal to set out its findings on the question as to hardship and a failure to refer to the evidence upon which the findings were based -- as was required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). 4 An initial difficulty confronting the Applicant was the fact that the decision of the Tribunal is a " privative clause decision " and hence is not susceptible of appeal. The inability to appeal arises by reason of s 476A(1)(b) and (d) of the 1958 Act which relevantly provides as follows: Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977 , the Federal Court has original jurisdiction in relation to a migration decision if, and only if: ... (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or ... (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution .
Case: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181
Outcome: applied
Although an unrepresented applicant is relevantly in no different position, both courts and tribunals are conscious of the difficulties confronting unrepresented litigants and are conscious of ensuring that any hearing is fair and just: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [26] per Finn J. See also: Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509. Brennan, Deane, Toohey, Gaudron and McHugh JJ there observed: A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. See also: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [51] [54], [2006] FCA 943 ; 91 ALD 362 at 372 per Cowdroy J.
Case: Scorgie v Minister for Immigration &amp; Citizenship [2008] FCAFC 101
Outcome: applied
The terms of Direction No 21 , and the requirements of s 39 , it may finally be noted, were considered by the Full Court in Scorgie v Minister for Immigration &amp; Citizenship [2008] FCAFC 101. There was there held to be on the facts of that case no failure to comply with s 39. And in Weti v Minister for Immigration &amp; Citizenship [2007] FCA 1531 there was no breach of s 39 occasioned by the Tribunal adjourning a proceeding on the application of an unrepresented applicant -- but only for one day. The applicant had there known of the unavailability of her solicitor for some time. The factual issues were said not to be complex and there were no legal issues. Edmonds J was there " not persuaded that the Tribunal's decision to limit the adjournment of the proceedings to one day, resulting in the almost inevitable consequence that she would not be legally represented at the hearing on the following day, constitutes a denial of natural justice or procedural fairness in the form of a failure to provide her with a reasonable opportunity to adequately present her case ": [2007] FCA 1531 at [38] .
Case: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 , 60 ALD 737
Outcome: applied
When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ.
Case: Sullivan v Department of Transport (1970) 20 ALR 323
Outcome: followed
When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ. 17 In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.
Case: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 , 44 AAR 382
Outcome: cited
But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration &amp; Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration &amp; Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".
Case: SZLMA v Minister for Immigration &amp; Citizenship [2008] FCA 69
Outcome: followed
Although the constraint imposed by s 476A(1) cannot be disregarded, it did not appear that anything would have been gained had the Applicant been directed to file an application seeking judicial review as opposed to treating the Notice of Appeal as though it were such an application. The Minister did not oppose this course. It is not considered that such a direction would have facilitated the expeditious hearing and resolution of the proceeding. The matter first came before the Court on 13 October 2008. The Applicant was then in detention at Villawood Detention Centre and it was desirable to have his grievances resolved as quickly as was consistent with a proper resolution of the issues raised in his Notice of Appeal . It is the practice of this Court to hear such cases as quickly as possible: eg, Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 at [42] , [2002] FCA 594 ; 120 FCR 1 at 11; SZLMA v Minister for Immigration &amp; Citizenship [2008] FCA 69 at [1] . With the co-operation of those appearing for the Respondent Minister, arrangements were made to have the relevant evidence filed and served by 15 October 2008. The matter was listed for final hearing on 17 October 2008.
Case: Tapel v Minister for Immigration &amp; Citizenship [2008] FCA 857
Outcome: applied
The fact that the Tribunal did not use the language of " hardship " that would be suffered by the Applicant -- as opposed to the " hardship " that would be occasioned to others -- it is considered, is not decisive. That which is decisive against the Applicant is the fact that the Tribunal considered the entirety of the evidence, including the evidence as to the effect that the decision would have upon him. Subject to a proper application of Direction No 21 , the weight to be given to the considerations addressed is a matter for the Tribunal alone: cf Black v Minister for Immigration &amp; Citizenship [2007] FCAFC 189 at [33] [37], [2007] FCAFC 189 ; 99 ALD 1 at 8 9; Tapel v Minister for Immigration &amp; Citizenship [2008] FCA 857 at [27] .
Case: Transport Accident Commission v Bausch (1998) 4 VR 249
Outcome: cited
In determining the " correct or preferable " decision the Tribunal must also be satisfied that there is " enough material " before it on a matter of central importance to the decision to be reached ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t] he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F &amp; F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).
Case: Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 , 101 ALD 454
Outcome: followed
Similarly, in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 , 101 ALD 454 Tamberlin J concluded: [13] The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the minister, would show jurisdictional error in her decision. The minister clearly addressed both the issue of hardship generally and each of the topics to which the direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1981) 162 CLR 24 ; 66 ALR 299 ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30. North and Mansfield JJ agreed.
Case: Weti v Minister for Immigration &amp; Citizenship [2007] FCA 1531
Outcome: considered
The terms of Direction No 21 , and the requirements of s 39 , it may finally be noted, were considered by the Full Court in Scorgie v Minister for Immigration &amp; Citizenship [2008] FCAFC 101. There was there held to be on the facts of that case no failure to comply with s 39. And in Weti v Minister for Immigration &amp; Citizenship [2007] FCA 1531 there was no breach of s 39 occasioned by the Tribunal adjourning a proceeding on the application of an unrepresented applicant -- but only for one day. The applicant had there known of the unavailability of her solicitor for some time. The factual issues were said not to be complex and there were no legal issues. Edmonds J was there " not persuaded that the Tribunal's decision to limit the adjournment of the proceedings to one day, resulting in the almost inevitable consequence that she would not be legally represented at the hearing on the following day, constitutes a denial of natural justice or procedural fairness in the form of a failure to provide her with a reasonable opportunity to adequately present her case ": [2007] FCA 1531 at [38] .
Case: ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 
Outcome: referred to
There is a body of authority bearing on the foregoing subject to which I have already made reference starting at [26] of these reasons, for instance Stevens, Hollis and Damevski. Attention was drawn by CAO also to ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361, which will shortly be discussed. The majority of those decisions were made in the broader context of determining whether a particular worker was an employee or else an independent contractor of the beneficiary of his or her work. 136 CAO emphasised that the importance of those factors will vary with the circumstances, no single factor being normally determinative, and that a balancing exercise is to be undertaken in relation to all of the relevant factors ( ACT Visiting Medical Officers at [19]-[20], [27] and [30] and BHP Billiton at [114]). CAO pointed out additionally that the fact that a party is benefited by the activities of a person is not a sufficient indication that the person is an employee, pointing thereby to Hollis at [40], where in the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, the following observation was made: 'Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee.'
Case: A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd &amp; Ors (T/as Sunland Wholesale Meats) (1998) 24 IR 467
Outcome: referred to
More recently in A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473, Gray J observed that the expression casual employee 'does not have a recognised legal meaning' , so that any issue as to the terms on which a casual employee is engaged 'becomes one of fact' . Accordingly it would seem that the expression has not materially changed in meaning since the High Court's decision in Doyle.
Case: Building Workers' Industrial Union of Australia and Others v Odco Pty Ltd (1991) 29 FCR 104 
Outcome: cited
Reference may also be made to Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104, where the context was that the respondent carried on business of supplying labour by way of hire to builders, construction managers and contractors in the building industry, and the issue arose whether workers thus sent to building sites by the respondent were the respondent's employees or the employees of the builder. A Full Federal Court (Wilcox, Burchett and Ryan JJ) found that no contract of employment, however characterised, had been made between the worker and the builder to whom his labour was supplied, because the element of consideration essential to a contract of employment, being the promise by the presumptive employer to pay for services as and where rendered, was absent in that case. In so finding, it was pointed out that the builder's only relevant obligation in that context was to make payment to the respondent labour supplier.
Case: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 
Outcome: cited
It was next emphasised by CAO that it bore comprehensive obligations pursuant to safety legislation, including the CMR Act, the CMG Regulation and the OHS Act; by way of one example, it was and remained obliged, pursuant to s 8(2) of the OHS Act, to 'ensure that people (other than the employees of the employer) are not exposed to risks to their health and safety arising from the conduct' of the employer's ' undertaking '. In relation to the analogous statutory obligation of an employer '... to ensure the health, safety and welfare at work of all employer's employees' imposed by s 15(1) of the precursor Occupational Health and Safety Act 1983 (NSW), it was said in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470 (Watson J) that 'the words "to ensure" are to be construed in... their ordinary meaning of guaranteeing, securing or making certain'. It was pointed out by CAO that the HVO remained at all material times a so-called controlled safety environment, as was acknowledged at least by Mr Wilton. 146 It was pointed out by CAO moreover that the obligation to ensure the safety of workers extended to every person working on site, whether as permanent employees, contractor personnel or some other persons; so much was said to have been testified by each of Messrs Wilton, Hendriks and Sargent. Moreover Mr Sargent further testified as to what CAO described as its proactive approach to safety precautions by way of policies and procedures designed to minimise safety risks to contractor personnel. Of course as an owner and occupier of its Ravensworth or Hunter Valley Operations, (to which I have been abbreviating as HVO), CAO would be subject to tortious duties of care in relation to visitors and other entrants and occupiers for the time being, irrespective of statutory liabilities flowing from its CAO mining operations. 147 CAO therefore submitted that the circumstances of exercise of control on its part, such as they were, did not demonstrate that CAO and the applicants were mutually involved in any employment relationship, and further that the explanation for the exercise by CAO of direction and supervision, to the extent of those CAO activities which took place, reflected the CAO case that the applicants were each employees of MES who had been supplied by MES to CAO in or towards discharge of the contractual obligations of MES to CAO.
Case: Doyle v Sydney Steel Company Limited [1936] HCA 66 ; (1936) 56 CLR 545 
Outcome: cited
The applicants acknowledged that the term 'casual employee' has no fixed meaning, citing Doyle v Sydney Steel Company Ltd [1936] HCA 66 ; (1936) 56 CLR 545 at 551, where Starke J provided the following description of the term: 'The description "casual worker" is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact for the commission.' At 555, Dixon J (as he then was) described the term as follows: 'But unfortunately what is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual.' At 565, McTiernan J considered that the expression 'is not capable of exact definition' , and that '[e] ach case is to be determined on its own facts...' . 104 More recently in A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473, Gray J observed that the expression casual employee 'does not have a recognised legal meaning' , so that any issue as to the terms on which a casual employee is engaged 'becomes one of fact' . Accordingly it would seem that the expression has not materially changed in meaning since the High Court's decision in Doyle.