mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80
Outcome: cited
A decision or purported decision to cancel a visa under the Migration Act is a privative clause decision or purported privative clause decision within the meaning of s 474(3)(b) Migration Act . In this case, it is clear that the decision of the Tribunal, which reviewed and affirmed the decision of the Minister's delegate to cancel the applicant's visa under the Migration Act , was also a privative clause decision or purported privative clause decision. Accordingly, an appeal to the Federal Court from a decision of the Tribunal concerning such a decision does not lie within s 44 AAT Act , and is not competent (cf Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 and Boyes v Minister for Immigration and Citizenship [2007] FCA 505).
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
I also note the limited power of the Court to intervene in the exercise of a discretion of an administrative tribunal. As pointed out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned... (cf Gyles, Allsop and Buchanan JJ in Williams v Minister for Justice and Customs (2007) 239 ALR 689 at 695) 26 Nonetheless, an issue of jurisdictional error potentially arises if the applicant's New Zealand criminal record was an irrelevant consideration but was taken into consideration by the Tribunal in its decision not to exercise its discretion in the applicant's favour (cf Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 , Minister for Immigration and Ethnic Affairs v Guo (1997) 151 CLR 559 at 575, Yusuf [2001] HCA 30 ; 206 CLR 323 at [41] ).
Case: Minister for Immigration and Ethnic Affairs v Guo (1997) 151 CLR 559
Outcome: cited
Nonetheless, an issue of jurisdictional error potentially arises if the applicant's New Zealand criminal record was an irrelevant consideration but was taken into consideration by the Tribunal in its decision not to exercise its discretion in the applicant's favour (cf Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 , Minister for Immigration and Ethnic Affairs v Guo (1997) 151 CLR 559 at 575, Yusuf [2001] HCA 30 ; 206 CLR 323 at [41] ).
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
This ground of review challenges the weight given by the Tribunal to the best interests of one of the children. However, it is clear that the weight given by the Tribunal to evidence before it, both oral and documentary evidence, is a matter for the Tribunal as an incident of its role as the arbiter of fact: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 36 In this case the Tribunal clearly gave proper, genuine and realistic consideration to the best interests of the children. 37 No jurisdictional error is demonstrated by this ground of review. 38 While the issue raised by the applicant in this ground of review may be of some relevance to the risk of recidivism (in the absence of particulars it is not clear), this ground of review goes to the facts of the applicant's case before the Tribunal, and possibly the weight ascribed by the Tribunal to various factors in the course of its decision-making. For the reasons outlined in respect of Ground 1, it is not a competent ground of review in this Court. 39 As a general proposition it is important that a decision-maker has before it the best evidence on which to base a decision. The Tribunal is empowered by legislation to inform itself on any matter in such a manner as it thinks appropriate, and is not bound by the rules of evidence: s 33(1)(c) AAT Act . Further, the Tribunal is empowered by statute to obtain evidence by compulsion if necessary: s 40(1A) AAT Act .
Case: Rountree and Minister for Immigration and Citizenship [2007] AATA 1615
Outcome: related
On 23 May 2007 the applicant's visa was cancelled on character grounds by a delegate of the Minister under s 501(2) Migration Act . The applicant applied to the Administrative Appeals Tribunal ("the Tribunal") to review that decision. The Tribunal affirmed the decision of the Minister's delegate ( Rountree and Minister for Immigration and Citizenship [2007] AATA 1615). 3 The applicant has now filed an application for an extension of time to file and serve a notice of appeal from a decision of the Tribunal and a draft notice of appeal from a decision of the Tribunal. 4 At the hearing before me the applicant was present in Court, and self-represented. The respondent was represented by Ms Wheatley of counsel.
Case: Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Outcome: cited
The Tribunal then considered whether to exercise its discretion not to cancel the applicant's visa under s 501(1) , and in light of Pt 2 of Direction No 21. The Tribunal noted that para 2.2 of Direction No 21 provided that a decision-maker should have regard to three primary considerations as set out in para 2.3, as well as a number of other considerations (for example, para 2.8). In summary, the Tribunal made the following findings: &#8226; In considering the first primary consideration, namely the need to protect the Australian community, the Tribunal took into account the nature of the Coffs Harbour offence, as well as several prior separate occasions when the applicant had received custodial terms of 12 months and several other shorter sentences of imprisonment for breaches of apprehended violence orders (at [75]). The Tribunal considered that there was a low to medium risk of recidivism in light of, inter alia , the applicant's "particularly long and sustained criminal record, both in Australia and New Zealand" (at [79]). &#8226; In considering the second primary consideration, namely the expectations of the Australian community, the Tribunal found that the community would expect that the visa of a person with such a sustained and serious record of criminal activity while in Australia should be cancelled, but at the same time it would be expected that the interests of the three children involved would be carefully considered. &#8226; In considering the third primary consideration, namely the best interests of the child, the Tribunal identified as relevant the decisions of the Full Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133 and Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. The Tribunal considered the evidence before it and observed that: o it was notable that the applicant's partner, Ms Messina, gave no evidence in the proceedings o one might have expected to see at least some kind of written statement from the eldest child o although Ms Messina had written a letter to the department four months prior to the hearing concerning the relationship between the applicant and both herself and the children, the absence of more recent evidence did not assist the applicant's case in relation to the issue o nothing would prevent the children visiting the applicant in New Zealand, and they could maintain contact through email and webcam o the children have their own father in Queensland.
Case: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133
Outcome: cited
The Tribunal then considered whether to exercise its discretion not to cancel the applicant's visa under s 501(1) , and in light of Pt 2 of Direction No 21. The Tribunal noted that para 2.2 of Direction No 21 provided that a decision-maker should have regard to three primary considerations as set out in para 2.3, as well as a number of other considerations (for example, para 2.8). In summary, the Tribunal made the following findings: &#8226; In considering the first primary consideration, namely the need to protect the Australian community, the Tribunal took into account the nature of the Coffs Harbour offence, as well as several prior separate occasions when the applicant had received custodial terms of 12 months and several other shorter sentences of imprisonment for breaches of apprehended violence orders (at [75]). The Tribunal considered that there was a low to medium risk of recidivism in light of, inter alia , the applicant's "particularly long and sustained criminal record, both in Australia and New Zealand" (at [79]). &#8226; In considering the second primary consideration, namely the expectations of the Australian community, the Tribunal found that the community would expect that the visa of a person with such a sustained and serious record of criminal activity while in Australia should be cancelled, but at the same time it would be expected that the interests of the three children involved would be carefully considered. &#8226; In considering the third primary consideration, namely the best interests of the child, the Tribunal identified as relevant the decisions of the Full Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133 and Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. The Tribunal considered the evidence before it and observed that: o it was notable that the applicant's partner, Ms Messina, gave no evidence in the proceedings o one might have expected to see at least some kind of written statement from the eldest child o although Ms Messina had written a letter to the department four months prior to the hearing concerning the relationship between the applicant and both herself and the children, the absence of more recent evidence did not assist the applicant's case in relation to the issue o nothing would prevent the children visiting the applicant in New Zealand, and they could maintain contact through email and webcam o the children have their own father in Queensland.
Case: Williams v Minister for Justice and Customs (2007) 239 ALR 689
Outcome: cited
I also note the limited power of the Court to intervene in the exercise of a discretion of an administrative tribunal. As pointed out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned... (cf Gyles, Allsop and Buchanan JJ in Williams v Minister for Justice and Customs (2007) 239 ALR 689 at 695)
Case: SZMKY v Minister for Immigration and Citizenship &amp; Anor [2008] FMCA 1338
Outcome: affirmed
The appellant applied to the Federal Magistrates Court on 20 June 2006, where she was unrepresented. Federal Magistrate Scarlett, in a judgment given ex tempore on 11 September 2008, dismissed the appellant's appeal to the Federal Magistrates Court: see SZMKY v Minister for Immigration and Citizenship &amp; Anor [2008] FMCA 1338. 5 The appellant filed a Notice of Appeal to the Federal Court on 2 October 2008. 6 The appellant claimed, in her application for a protection visa and before the Tribunal, that she had been persecuted because of her violation of the "one-child" policy in force in China. She married her husband in 1988, and they had a child together in 1991, a daughter. Her husband wished to have a son, however, and she became pregnant again in 2002. Because a second birth was not permitted pursuant to the one-child policy, she had to hide in the homes of others to avoid officials. She said that she had been discovered in her seventh month of pregnancy by birth control officials and was detained and forced to have an abortion. Thereafter, she said that her house had been confiscated, that she had lost her employment, and, as a consequence of the forced abortion, her husband divorced her in 2003. She also claimed that the electricity and water supply were cut off to her home.
Case: Mentha, In the matter of Hans Continental Smallgoods Pty Ltd (Administrators Appointed) [2008] FCA 1933
Outcome: cited
authorities establish that, where an application is made under s 439A(6) for an extension of time, the Court must strike a balance between the expectation that the administration be conducted relatively speedily and summarily and the need to ensure that undue speed not prejudice sensible and constructive actions directed towards maximising the return for creditors and shareholders: see Mentha, In the matter of Hans Continental Smallgoods Pty Ltd (Administrators Appointed) [2008] FCA 1933 at [20] per Jacobson J and PCG Capital Management Limited, In the matter of PCG Capital Management Limited and Glen Brook Pty Limited [2008] FCA 508 at [16] per Emmett J.
Case: PCG Capital Management Limited, In the matter of PCG Capital Management Limited and Glen Brook Pty Limited [2008] FCA 508
Outcome: cited
authorities establish that, where an application is made under s 439A(6) for an extension of time, the Court must strike a balance between the expectation that the administration be conducted relatively speedily and summarily and the need to ensure that undue speed not prejudice sensible and constructive actions directed towards maximising the return for creditors and shareholders: see Mentha, In the matter of Hans Continental Smallgoods Pty Ltd (Administrators Appointed) [2008] FCA 1933 at [20] per Jacobson J and PCG Capital Management Limited, In the matter of PCG Capital Management Limited and Glen Brook Pty Limited [2008] FCA 508 at [16] per Emmett J.
Case: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: followed
The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of "disease" in the SRC Act . I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded.
Case: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550
Outcome: referred to
There remains the question though, whether any useful purpose would be served in remitting this matter to the Tribunal for redetermination. The caution that should be exercised before concluding that it would be futile to remit is well understood: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562. Nonetheless, having regard to the Tribunal's findings in light of Dr Hayes' evidence, and the centrality given in that evidence to the employment's contribution to the disease suffered by the respondent, I am satisfied that had the Tribunal applied the correct test the result would not have been different. For this reason, notwithstanding the error of law, I am satisfied that the Tribunal's decision was clearly correct on the material before it having regard to its acceptance of Dr Hayes' evidence. 19 I will order that the appeal be dismissed with costs. 20 Though it is not of relevance in determining this matter, I would simply note that a Bill is currently before the Commonwealth Parliament one purpose of which, according to its Explanatory Memorandum, is to amend the definition of "disease" to strengthen the connection between the disease and the employee's employment: Safety Rehabilitation and Compensation and other Legislation Amendment Bill 2006 (Cth), Sched 1 cl 11, s 5B. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 January 2007 Counsel for the Applicant: P Hanks Solicitor for the Applicant: Sparke Helmore Counsel for the Respondent: G Britton Solicitor for the Respondent: Condello &amp; Co Date of Hearing: 29 November 2006 Date of Judgment: 19 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/15.html
Case: Repatriation Commission v Bendy (1989) 10 AAR 323
Outcome: referred to
What is problematic is identifying where that threshold lies. Treloar's case set its own threshold of sorts for satisfying the 1971 Act's "contributing factor" requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar , at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as "material": see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term "material" in the phrase "in a material degree" is used in the SRC Act . The legislative history of this definition makes this plain. 15 There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word "material" in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word "materially" in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is "4. In a material degree; substantially, considerably." An example given of this usage is that of contributing "materially to the funds required" for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the "loose sense" of the definition of "material" in the Macquarie dictionary " namely, 'of substantial import or much consequence' [rather than the] legal sense of 'pertinent' or 'likely to influence'". 16 Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition: (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act; (ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation"); (iii) whether this will be so in a given case will be a matter of fact and degree.
Case: Neil v P &amp; O Cruises Australia Limited [2002] FCA 1325
Outcome: applied
the Court is informed that each adult member of the representative group has been advised on an individual basis as to the merits of the claim and has expressly consented to the terms of the proposed settlement, the Court need not look beyond that express consent when considering an application under s 33V: Neil v P &amp; O Cruises Australia Limited [2002] FCA 1325 at [8] - [9] . This is the case in the present application. The trial of the proceedings began on 16 April 2009 and proceeded into the second day on 17 April 2009. After the second day the trial was adjourned and a mediation was conducted on 28 April 2009 by Registrar Moore. At that session an offer was made by the first, second and third respondents (the said respondents) that caused the mediation to be adjourned until 20 May 2009. Following the first session of the mediation, the solicitors for the applicant sought advice from counsel in relation to the settlement offer made by the said respondents. A written advice was provided by counsel and was supplied to all 19 group members. The group members were also given the opportunity to ask questions of and consult with their lawyers regarding the litigation.
Case: Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 ; [2000] FCA 1925
Outcome: applied
involved parties have gone further to seek to persuade the Court in oral and written submissions by senior counsel for the applicant that, on the merits, the agreement is indeed fair and reasonable: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 ; [2000] FCA 1925 at [19] . A number of matters were advanced in support of this conclusion. The first matter was the consent of the group members to the settlement in the circumstances outlined above. Next it was contended that the complexity and potential duration of the litigation made it reasonable to settle. The trial had at least 10 more days to run with the attendant costs. Then, the applicant pointed to the risk of failing to establish liability. Even if liability were established, in relation to quantum there were alternative bases proposed in the applicant's case upon which damages could be assessed. On one measure, taking the difference in capital value as the basis of the assessment of damages, the damages would have amounted to a little over a million dollars. On the alternative basis of assessing the shortfall in return as against the promised return made in the alleged representations, the range of outcomes would have been from around $292,000 to $814,000. The settlement figure falls approximately just under halfway within the range.