mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14
Outcome: considered
Aporo relies on SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14 at [53] [56]. In that case Allsop J considered a circumstance in which the Tribunal relied upon the fact that an appellant failed to submit a response to the invitation to make submissions when in fact the Tribunal had received a cover sheet stating that submissions were enclosed even though, apparently by mistake, they were not. The appellant submitted that in those circumstances the Tribunal should have made inquiries about the missing enclosure and the comments the appellant intended to make, as it was on notice that the enclosure had been forwarded. Justice Allsop accepted the ' straightforward recognition ' that no duty to inquire about evidence arises from the terms of s 427 of the Act (at [46]). His Honour noted that in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) said, in the context of explaining how detailed the questioning of an applicant was required to be, that '[t] he Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on '. However, Allsop J concluded that that reference had nothing had to do with the specific circumstances of the case before him. Justice Allsop concluded that the giving of an invitation to comment carries with it an obligation under the Act to deal with a communication in response to that invitation in a reasonably business-like way, including the reading of any response to the invitation. The question in SZJBA was not whether the Tribunal should have undertaken some evidence gathering task (at [59]). The failure ' was to take a simple administrative step of an office or housekeeping nature '. The obligation does not rest on some positive duty of inquiry. It is only in exceptional cases that a failure to make an inquiry may ground a finding of jurisdictional error (at [60]; see also Le at [60] per Kenny J).
Case: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 ; (2004) 80 ALD 568
Outcome: cited
Aporo now criticises the Tribunal for accepting his statements in respect of the Villawood assessment and criticises the Tribunal for accepting the evidence from a witness, namely himself, who had a ' demonstrated propensity to fabricate evidence '. Mr Aporo relies upon the Tribunal's acceptance of his own evidence as indicating a capriciousness in the decision making process and a failure to act judicially in the sense of being based on ' instinct, a hunch or a gut-feeling ' ( WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 ; (2004) 80 ALD 568 at [20] and following; Sharp v Wakefield [1891] AC 173 at 179). The Tribunal was entitled to accept so much of Mr Aporo's evidence and submissions as it determined was acceptable. Further, there is a difference between submissions and the result of an assessment and evidence of criminal history. Mr Aporo says that there was insufficient material before either the delegate or the Tribunal to support a conclusion regarding the likelihood of recidivism adverse to Mr Aporo. The Tribunal was entitled to take account of the evidence and submissions before it and come to a conclusion based upon that evidence and those submissions. That is what occurred. The Tribunal was not obliged to conduct an independent investigation, or to conduct its own assessment of the likelihood of Mr Aporo's recidivism. The weight given to Mr Aporo's evidence
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Outcome: cited
In declining interlocutory relief, I have had regard to the principles recently considered by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46. Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, cited with approval (at par 65) the following statement from Beecham Group Ltd v Bristol Laboratories Pty. Limited [1968] HCA 1 ; (1968) 118 CLR 618 at p 622: 'How strong the probability [of success] needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.' 55 In O'Neill , their Honours disapproved of statements by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 and said at pars 71 72 '71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". That was followed by a proposition which appears to reverse matters of onus: "So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.'
Case: Beecham Group Ltd v Bristol Laboratories Pty. Limited [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: cited
In declining interlocutory relief, I have had regard to the principles recently considered by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46. Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, cited with approval (at par 65) the following statement from Beecham Group Ltd v Bristol Laboratories Pty. Limited [1968] HCA 1 ; (1968) 118 CLR 618 at p 622: 'How strong the probability [of success] needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.'
Case: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396
Outcome: cited
In O'Neill , their Honours disapproved of statements by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 and said at pars 71 72 '71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". That was followed by a proposition which appears to reverse matters of onus: "So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.'
Case: Administration of the Territory of Papua New Guinea v Daera Guba [1973] PGHCA 1 ; (1973) 130 CLR 353
Outcome: cited
First, as a general proposition, adjudication by an administrative tribunal is administrative in character and does not create an issue of estoppel : W J &amp; F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23 ; (1957) 96 CLR 294 at 315. And that general approach has been applied in respect of decisions of the Administrative Appeals Tribunal: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87. Hill J there observed at 97: Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT [1935] HCA 21 ; (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: "only another executive body in an administrative hierarchy". The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT [1963] HCA 41 ; (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be. In relation to the taxation boards of review, Kitto J in W J &amp; F Barnes Pty Ltd v FCT [1957] HCA 23 ; (1957) 96 CLR 294 at 315, said: "The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel." The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279 ; 17 FCR 476 at 480 had no hesitation in saying: "A finding by an administrative tribunal will not give rise to an issue estoppel." Hill J then went on to conclude (at 98) that the decision of the High Court in Administration of the Territory of Papua New Guinea v Daera Guba [1973] PGHCA 1 ; (1973) 130 CLR 353 did not require any contrary conclusion. This decision has since been followed: Lilienthal v Migration Agents Registration Authority [2001] FCA 2 at [20] , 65 ALD 437 at 442 per Katz J.
Case: Hanna v Australian Postal Corporation [1990] FCA 153 ; (1990) 12 AAR 511
Outcome: considered
The argument, however, ignores the effect given to a decision of the Tribunal. Section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows: A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44) , be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. In the present context, a decision of the Tribunal is deemed to be a decision of the Commission " for all purposes ". Where there has been a decision of the Commission which has been reviewed by the Tribunal, as in the present proceedings, the subsequent decision of the Tribunal is nevertheless " deemed " to be a decision of the Commission. Section 31(4) , it is considered, thus includes both a decision of the Commission and a decision of the Commission as altered, varied or affirmed. The effect of s 43(6) of the 1975 Act cannot be confined to simply identifying the date from which a decision of the Tribunal is to take effect. To so construe s 43(6) is to give effect only to the latter part of the provision and is to ignore the " deeming " effect given to a Tribunal decision. To conclude that the power of review vested in " the Commission " by s 31(4) could not be exercised after review by the Tribunal would be to construe s 31(4) as excluding a power of review where there has been a decision which is deemed to be a decision of the Commission itself and deemed to be a decision of the Commission " for all purposes ". A construction of a statutory provision which permits further administrative reconsideration subsequent to a Tribunal decision is not surprising: see, eg, Hanna v Australian Postal Corporation [1990] FCA 153 ; (1990) 12 AAR 511. 17 Irrespective of s 43(6) of the 1975 Act, however, it is further considered that the contrast in language relied upon by Mr Godwin as between s 31(4) and s 31(6) is misplaced. All that the language employed in s 31(6) prescribes are those circumstances in which the Commission may exercise the power there conferred. It may exercise those powers where it is " satisfied " that there is a " matter " that was not before any of the decision-making stages, be the decision one made by the Commission, the Board or the Tribunal. Such a provision provides little if any basis for confining the ambit of the power conferred by s 31(4). The difference in language as between s 34(4) and s 34(6) is not considered to be a sufficient basis to construe s 31(4) as imposing any constraint other than the one prescribed by the legislature, namely that the Commission be satisfied that evidence was " false in a material particular ".
Case: Lilienthal v Migration Agents Registration Authority [2001] FCA 2
Outcome: cited
First, as a general proposition, adjudication by an administrative tribunal is administrative in character and does not create an issue of estoppel : W J &amp; F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23 ; (1957) 96 CLR 294 at 315. And that general approach has been applied in respect of decisions of the Administrative Appeals Tribunal: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87. Hill J there observed at 97: Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT [1935] HCA 21 ; (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: "only another executive body in an administrative hierarchy". The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT [1963] HCA 41 ; (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be. In relation to the taxation boards of review, Kitto J in W J &amp; F Barnes Pty Ltd v FCT [1957] HCA 23 ; (1957) 96 CLR 294 at 315, said: "The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel." The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279 ; 17 FCR 476 at 480 had no hesitation in saying: "A finding by an administrative tribunal will not give rise to an issue estoppel." Hill J then went on to conclude (at 98) that the decision of the High Court in Administration of the Territory of Papua New Guinea v Daera Guba [1973] PGHCA 1 ; (1973) 130 CLR 353 did not require any contrary conclusion. This decision has since been followed: Lilienthal v Migration Agents Registration Authority [2001] FCA 2 at [20] , 65 ALD 437 at 442 per Katz J.
Case: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87
Outcome: followed
First, as a general proposition, adjudication by an administrative tribunal is administrative in character and does not create an issue of estoppel : W J &amp; F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23 ; (1957) 96 CLR 294 at 315. And that general approach has been applied in respect of decisions of the Administrative Appeals Tribunal: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87. Hill J there observed at 97: Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT [1935] HCA 21 ; (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: "only another executive body in an administrative hierarchy". The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT [1963] HCA 41 ; (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be. In relation to the taxation boards of review, Kitto J in W J &amp; F Barnes Pty Ltd v FCT [1957] HCA 23 ; (1957) 96 CLR 294 at 315, said: "The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel." The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279 ; 17 FCR 476 at 480 had no hesitation in saying: "A finding by an administrative tribunal will not give rise to an issue estoppel." Hill J then went on to conclude (at 98) that the decision of the High Court in Administration of the Territory of Papua New Guinea v Daera Guba [1973] PGHCA 1 ; (1973) 130 CLR 353 did not require any contrary conclusion. This decision has since been followed: Lilienthal v Migration Agents Registration Authority [2001] FCA 2 at [20] , 65 ALD 437 at 442 per Katz J.
Case: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21
Outcome: considered
First, the task of determining whether there was evidence which was " false in a material particular " is not a task entrusted to this Court; it is a task entrusted by the Commonwealth legislature to the Commission. Section 31(4) thus confers the power of review where " the Commission is satisfied that evidence before [it] when it made a decision was false in a material particular ". Where a discretionary power is vested in the Commission in such terms, it matters not that others may have reached a different decision and may have done so reasonably, provided that there was some probative material available to support the decision in fact taken by the Commission: cf Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 at [45] per Gleeson CJ and McHugh J, [147] per Gummow J, [1999] HCA 21 ; 197 CLR 611.
Case: Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19
Outcome: followed
Second, there was indeed material available to the Commission upon which it could reach the state of satisfaction that evidence previously before it was " false in a material particular ". The meaning of the term " false " depends upon the statutory context in which it is used. In some statutory contexts the term may mean " purposely or deliberately or intentionally untrue ": see, eg, Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19. The term " false " in the present statutory context, however, is considered to mean " objectively incorrect ": cf Musgrave v Martin [2003] FCA 920 at [105] , [2003] FCA 920 ; 130 FCR 546 at 565 per Weinberg J. Where the 1986 Act seeks to impose a requirement that a " false " statement be made " intentionally ", it so provides: see, eg, s 208.
Case: Musgrave v Martin [2003] FCA 920
Outcome: followed
Second, there was indeed material available to the Commission upon which it could reach the state of satisfaction that evidence previously before it was " false in a material particular ". The meaning of the term " false " depends upon the statutory context in which it is used. In some statutory contexts the term may mean " purposely or deliberately or intentionally untrue ": see, eg, Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19. The term " false " in the present statutory context, however, is considered to mean " objectively incorrect ": cf Musgrave v Martin [2003] FCA 920 at [105] , [2003] FCA 920 ; 130 FCR 546 at 565 per Weinberg J. Where the 1986 Act seeks to impose a requirement that a " false " statement be made " intentionally ", it so provides: see, eg, s 208.