mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Amcor Ltd v Comptroller-General of Customs (1988) 79 ALR 221
Outcome: cited
In my view, there can be no real doubt that the effective or operative decision was the second decision. First, it was a review or reconsideration of the first decision; second, it was made by a delegate of the Deputy Commissioner who, at the relevant time, was at a higher level to the delegate of the Deputy Commissioner who made the first decision: see Amcor Ltd v Comptroller-General of Customs (1988) 79 ALR 221 at 226; Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs &amp; Ors (1989) 86 ALR 387 at 388; Universal Magazines Pty Ltd v Comptroller-General of Customs [1990] FCA 244 ; (1990) 21 ALD 502 at 503, 504; and Post Office Agents Association Ltd &amp; Anor v Australian Postal Commission (1988) 84 ALR 563 at 571.
Case: Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs &amp; Ors (1989) 86 ALR 387
Outcome: cited
In my view, there can be no real doubt that the effective or operative decision was the second decision. First, it was a review or reconsideration of the first decision; second, it was made by a delegate of the Deputy Commissioner who, at the relevant time, was at a higher level to the delegate of the Deputy Commissioner who made the first decision: see Amcor Ltd v Comptroller-General of Customs (1988) 79 ALR 221 at 226; Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs &amp; Ors (1989) 86 ALR 387 at 388; Universal Magazines Pty Ltd v Comptroller-General of Customs [1990] FCA 244 ; (1990) 21 ALD 502 at 503, 504; and Post Office Agents Association Ltd &amp; Anor v Australian Postal Commission (1988) 84 ALR 563 at 571.
Case: Elias v Commissioner of Taxation (2002) 51 ATR 1
Outcome: applied
Subsections 8AAG(3) and 8AAG(4) are true alternatives. Subsection 8AAG(5) is intended to cover cases which are not within subs (3) and (4): Elias v Commissioner of Taxation (2002) 51 ATR 1 at [45]. 20 The Commissioner is required to reach a state of satisfaction as to the elements in subss 8AAG(3), (4) and (5). 21 If the Commissioner is satisfied as to the matters referred to in one of the subsections, then the Commissioner is required to remit all or part of the GIC. Use of the expression 'the Commissioner may remit' the GIC if satisfied as to specified matters, does not confer a residual discretion not to remit all or part of the GIC: Webb v Commissioner of Taxation (No. 2) [1993] FCA 612 ; (1993) 27 ATR 459 at 469; followed in Elias at [46]. On the other hand, the expression '... all or a part of the charge ...' gives the Commissioner a residual discretion as to how much of the charge is remitted even if he is satisfied as to the specified matters in subs 8AAG(3), (4) or (5). 22 Subsections 8AAG(4)(c) and 8AAG(5)(a) require the Commissioner to be satisfied that it would be 'fair and reasonable' to remit all or part of the GIC. In determining the issue whether it would be fair and reasonable to remit the GIC, the Commissioner is entitled to take into account in the exercise of that discretion the policy of the TAA that additional tax is payable as at a certain date. That is a matter to be weighed in determining the fairness and reasonableness of remission: Webb at 469, followed in Elias at [47].
Case: Post Office Agents Association Ltd &amp; Anor v Australian Postal Commission (1988) 84 ALR 563
Outcome: cited
In my view, there can be no real doubt that the effective or operative decision was the second decision. First, it was a review or reconsideration of the first decision; second, it was made by a delegate of the Deputy Commissioner who, at the relevant time, was at a higher level to the delegate of the Deputy Commissioner who made the first decision: see Amcor Ltd v Comptroller-General of Customs (1988) 79 ALR 221 at 226; Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs &amp; Ors (1989) 86 ALR 387 at 388; Universal Magazines Pty Ltd v Comptroller-General of Customs [1990] FCA 244 ; (1990) 21 ALD 502 at 503, 504; and Post Office Agents Association Ltd &amp; Anor v Australian Postal Commission (1988) 84 ALR 563 at 571.
Case: Universal Magazines Pty Ltd v Comptroller-General of Customs [1990] FCA 244 ; (1990) 21 ALD 502
Outcome: cited
In my view, there can be no real doubt that the effective or operative decision was the second decision. First, it was a review or reconsideration of the first decision; second, it was made by a delegate of the Deputy Commissioner who, at the relevant time, was at a higher level to the delegate of the Deputy Commissioner who made the first decision: see Amcor Ltd v Comptroller-General of Customs (1988) 79 ALR 221 at 226; Corinthian Industries (Syd) Pty Ltd v Comptroller-General of Customs &amp; Ors (1989) 86 ALR 387 at 388; Universal Magazines Pty Ltd v Comptroller-General of Customs [1990] FCA 244 ; (1990) 21 ALD 502 at 503, 504; and Post Office Agents Association Ltd &amp; Anor v Australian Postal Commission (1988) 84 ALR 563 at 571.
Case: Webb v Commissioner of Taxation (No. 2) [1993] FCA 612 ; (1993) 27 ATR 459
Outcome: applied
If the Commissioner is satisfied as to the matters referred to in one of the subsections, then the Commissioner is required to remit all or part of the GIC. Use of the expression 'the Commissioner may remit' the GIC if satisfied as to specified matters, does not confer a residual discretion not to remit all or part of the GIC: Webb v Commissioner of Taxation (No. 2) [1993] FCA 612 ; (1993) 27 ATR 459 at 469; followed in Elias at [46]. On the other hand, the expression '... all or a part of the charge ...' gives the Commissioner a residual discretion as to how much of the charge is remitted even if he is satisfied as to the specified matters in subs 8AAG(3), (4) or (5). 22 Subsections 8AAG(4)(c) and 8AAG(5)(a) require the Commissioner to be satisfied that it would be 'fair and reasonable' to remit all or part of the GIC. In determining the issue whether it would be fair and reasonable to remit the GIC, the Commissioner is entitled to take into account in the exercise of that discretion the policy of the TAA that additional tax is payable as at a certain date. That is a matter to be weighed in determining the fairness and reasonableness of remission: Webb at 469, followed in Elias at [47].
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: applied
principles which may assist the Court in exercising its discretion under O 52 r 15(2) were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and subsequently adopted by the Full Court in Parker v The Queen at pars 6-7, as follows: 1. 'Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time. 2. Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. 3. Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension. 5. The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.'
Case: Parker v The Queen [2002] FCAFC 133
Outcome: applied
principles applicable to an extension of time are well settled. Whilst it is important that parties observe the time limits set by the Rules, the Court does have discretion to extend time to permit a notice of appeal to be filed in order to avoid injustice where a party has missed a prescribed deadline for filing ( Parker v The Queen [2002] FCAFC 133 at pars 10-13). The applicant must however demonstrate 'special reasons' to the Court. Guiding principles which may assist the Court in exercising its discretion under O 52 r 15(2) were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and subsequently adopted by the Full Court in Parker v The Queen at pars 6-7, as follows: 1. 'Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time. 2. Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. 3. Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension. 5. The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.'
Case: SZFBU v Minister for Immigration and Multicultural Affairs [2006] FCA 1018
Outcome: cited
my view in this case the applicant has insufficient prospects of success to warrant granting an extension of time to file a notice of appeal ( WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 at par 9 per Lee, Nicholson and Finkelstein JJ, and more recently Conti J in SZFBU v Minister for Immigration and Multicultural Affairs [2006] FCA 1018 at pars 9-10). Notwithstanding that the delay in filing the notice of appeal was short and it appeared that the respondents experienced no prejudice, in my view the appropriate order is to dismiss the application with costs. ORDER 1. The application for extension of time to file and serve a notice of appeal be dismissed. 2. The applicant pay the costs of the first respondent fixed at the sum of $3500. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 August 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 August 2006 Date of Judgment: 18 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1086.html
Case: SZHTW v Minister for Immigration &amp; Anor [2006] FMCA 356
Outcome: cited
a supporting affidavit filed 5 April 2006, the applicant recounted facts including his failed application for review to the Tribunal, and the fact that he lost his case before Driver FM. The applicant also noted that his migration agent had not lodged his amended application in the Federal Magistrates Court, although I note from the judgment of Driver FM that his Honour gave leave for a form of amended application to be filed in court ( SZHTW v Minister for Immigration &amp; Anor [2006] FMCA 356 at par 6).
Case: WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399
Outcome: cited
my view in this case the applicant has insufficient prospects of success to warrant granting an extension of time to file a notice of appeal ( WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 at par 9 per Lee, Nicholson and Finkelstein JJ, and more recently Conti J in SZFBU v Minister for Immigration and Multicultural Affairs [2006] FCA 1018 at pars 9-10). Notwithstanding that the delay in filing the notice of appeal was short and it appeared that the respondents experienced no prejudice, in my view the appropriate order is to dismiss the application with costs. ORDER 1. The application for extension of time to file and serve a notice of appeal be dismissed. 2. The applicant pay the costs of the first respondent fixed at the sum of $3500. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 August 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 August 2006 Date of Judgment: 18 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1086.html
Case: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Outcome: cited
In NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 the Full Court observed at [21] that the Federal Magistrate whose decision was being challenged had no transcript of the Tribunal's hearing before him and there was 'simply no basis upon which his Honour could properly have made this finding' of mis- interpretation. In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 the Full Court considered a challenge to the accuracy of an interpreter's translation and observed that the appellant had not presented to the Court 'any material attesting to the inaccuracy of the interpretation provided, nor any review by a competent interpreter of an audio recording of the Tribunal's proceedings '.
Case: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539
Outcome: referred to
In the present proceedings the Tribunal had clearly indicated its concerns to the appellant. The Tribunal's reasons state: 'the Tribunal alerted the applicant to its concerns...' as set out above. This discharged the obligation to provide procedural fairness because the decision maker brought to the appellant's attention 'the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it...' : see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 per Merkel J; see also Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, especially Fox J at 505-506 and Neaves J at 513. At 513 Neaves J said: It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her.
Case: Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168
Outcome: applied
In NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 the Full Court observed at [21] that the Federal Magistrate whose decision was being challenged had no transcript of the Tribunal's hearing before him and there was 'simply no basis upon which his Honour could properly have made this finding' of mis- interpretation. In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 the Full Court considered a challenge to the accuracy of an interpreter's translation and observed that the appellant had not presented to the Court 'any material attesting to the inaccuracy of the interpretation provided, nor any review by a competent interpreter of an audio recording of the Tribunal's proceedings '.
Case: SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
Outcome: referred to
The finding of the Tribunal was based upon its non acceptance of the appellant's testimony. The Tribunal based its findings upon information which the appellant provided to the Tribunal for the purposes of the application for review. Accordingly it falls within the exception to s 424A(1) of the Act contained in s 424A(3)(b) of the Act: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] . 26 For the above reasons, this appeal is dismissed. 27 The Minister has sought an order for costs in the sum of $3000. Since this is within a reasonable range for costs, the Court will make the order sought. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 18 October 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: J. Mitchell Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 16 August 2007 Date of Judgment: 18 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1092.html
Case: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344
Outcome: cited
Counsel for the first respondent argued that the Tribunal's function is to review the decision on the merits and within the framework provided in Div 5 of Pt 5 of the Act: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344, followed in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314. The Tribunal properly carried out its task of a merits review and asked itself the correct question on the merits review.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314
Outcome: cited
Counsel for the first respondent argued that the Tribunal's function is to review the decision on the merits and within the framework provided in Div 5 of Pt 5 of the Act: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344, followed in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314. The Tribunal properly carried out its task of a merits review and asked itself the correct question on the merits review.
Case: Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436
Outcome: cited
Counsel for the applicant submitted that the cases of Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 and Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 support the contention that an education provider can take into account discretionary factors when determining whether an applicant's academic result has been 'at least satisfactory'.
Case: Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261
Outcome: cited
Counsel for the applicant submitted that the cases of Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 and Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 support the contention that an education provider can take into account discretionary factors when determining whether an applicant's academic result has been 'at least satisfactory'.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448
Outcome: cited
I also reject the contention of the applicant that the Tribunal committed jurisdictional error by failing to make inquiries as to whether or not the University's letter and email response meant that the University was thereby certifying that the academic result was 'at least satisfactory'. There is no absolute obligation on the Tribunal to make inquiry ( Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448). Once it is recognised that a distinction is to be drawn between a student achieving an academic result that is certified to be 'at least satisfactory', and the academic status accorded to a student, there was no ambiguity in relation to the material from the University and, therefore, no reason for the Tribunal to embark upon any inquiry of the University. 45 I find, therefore, that the Tribunal did not fall into jurisdictional error. It follows that the application must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 23 June 2006 Counsel for the Applicant: Mr R Lindsay Solicitor for the Applicant: CGN Legal Counsel for the First Respondent: Mr J Allanson Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 19 October 2005 and 15 February 2006 Date of Judgment: 23 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/788.html
Case: .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521
Outcome: cited
In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]-[26] Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows: (1) first, identify the relevant section or sections of the public by reference to which the issue is to be tested. The target section or sections of the public would, of course, vary according to the facts of each case: Parkdale at 209 per Mason J; Finucane v New South Wales Egg Corp (1988) 80 ALR 486 at 516. The relevant section or sections of the public may be confined by factors such as the time period over which the alleged representations were made and the geographical circulation of the advertisements containing the alleged representations. (For an example of geographical circulation defining the relevant test section, see Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 446); (2) second, having identified the relevant section or sections of the public, consider who comes within that section or those sections. This may include the astute and the gullible, the intelligent and the not so intelligent, the well educated and the poorly educated: see also Parkdale at 199 per Gibbs CJ; (3) third, it is permissible, but not essential, to have regard to evidence that some person has in fact been misled, though this evidence will not be conclusive; (4) fourth, it is necessary to enquire whether any proven misconception has arisen because of the misleading or deceptive conduct; (5) fifth, where the persons alleged to have been misled are members of a class, it is necessary to isolate a representative member of the class and enquire whether that hypothetical person is likely to be deceived; (6) sixth, when considering the likely effect of the misrepresentation on this hypothetical person, he or she should be judged as an "ordinary" or "reasonable" member of the class, excluding reactions to the representation that are "extreme" or "fanciful".