mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
obligations of the Tribunal are to be determined by reference to the Migration Act as it existed on 7 January 1999, the date of its decision. The Migration Act did not then include s 422B , which provides that Div 4 of Pt 7 of the Migration Act (which relates to the conduct of the Tribunal's review) is taken to be an exhaustive statement of the natural justice hearing rule. It is clear that s 422B of the Migration Act now operates to exclude the requirement for decision-makers to abide by common law principles of procedural fairness: see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61. However, it is equally clear from decisions of the High Court that common law principles of procedural fairness were not excluded from the Migration Act as it existed prior to the enactment of s 422B: see Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at [37] - [38] per Gleeson CJ; at [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [26] per Gleeson CJ and Hayne J; at [95] per Gaudron J; at [128] per McHugh J; at [188] per Kirby J. Accordingly, it is open to the applicant to raise a breach of common law procedural fairness.
Case: Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
obligations of the Tribunal are to be determined by reference to the Migration Act as it existed on 7 January 1999, the date of its decision. The Migration Act did not then include s 422B , which provides that Div 4 of Pt 7 of the Migration Act (which relates to the conduct of the Tribunal's review) is taken to be an exhaustive statement of the natural justice hearing rule. It is clear that s 422B of the Migration Act now operates to exclude the requirement for decision-makers to abide by common law principles of procedural fairness: see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61. However, it is equally clear from decisions of the High Court that common law principles of procedural fairness were not excluded from the Migration Act as it existed prior to the enactment of s 422B: see Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at [37] - [38] per Gleeson CJ; at [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [26] per Gleeson CJ and Hayne J; at [95] per Gaudron J; at [128] per McHugh J; at [188] per Kirby J. Accordingly, it is open to the applicant to raise a breach of common law procedural fairness.
Case: SZECD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 31 ; (2006) 150 FCR 53
Outcome: referred to
second respondent submits that VEAL is distinguishable from the present case on the basis of Bennett J's decision in SZECD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 31 ; (2006) 150 FCR 53. In that decision, Bennett J distinguished the decision in VEAL on the basis that although procedural unfairness had been established in respect of one basis of the Tribunal's decision, there was a separate and independent basis for its conclusion which was not affected by procedural unfairness: see at [28], [40]-[41].
Case: Nokia Corporation v Cellular Line Australia Pty Ltd [2006] FCA 726
Outcome: referred to
In Nokia Corporation v Cellular Line Australia Pty Ltd [2006] FCA 726 , delivered on 14 June 2006, the Court held that the first and second respondents had infringed the applicant's trademarks and, as they had failed to establish any arguable defence, the applicant was entitled to summary judgment against them. Further, the third and fourth respondents admitted, in essence, that they had infringed the applicant's trademarks. The Court made orders accordingly.
Case: Nokia Corporation v Cellular Line Australia Pty Ltd (No 3) [2006] FCA 980
Outcome: referred to
In Nokia Corporation v Cellular Line Australia Pty Ltd (No 2) [2006] FCA 980 , delivered on 11 August 2006, the Court ordered that 60% of the applicant's costs be paid by the first and second respondents, 20% be paid by the third respondent, and 20% be paid by the fourth respondent (less 20% of costs referable to the applicant's costs of preparing evidence of sales of counterfeit products after 24 February 2006). 4 At a directions hearing on 15 December 2006, the Court gave the applicant leave to discontinue against the first respondent, on the basis that the applicant's costs be taxed and paid forthwith. Further, the Court ordered, by consent, that the proceeding be discontinued as against the fourth respondent, and that the fourth respondent pay the applicant costs and damages in the amount of $25,000 forthwith. The proceeding remains alive with respect to the second and third respondents. 5 At the 15 December 2006 directions hearing, the applicant agreed that the proceedings should be discontinued against the third respondent, subject to the resolution of the question of costs. I stated that, in the circumstances, my preferred course was to fix these costs, a course to which the applicant and the third respondent acceded.
Case: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 111
Outcome: cited
Where the Court orders costs to be paid, O 62 r 4(2)(c) of the Federal Court Rules enables the Court to specify a gross sum instead of taxed costs: see also s 43 of the Federal Court of Australia Act 1976 (Cth). I consider it appropriate to fix costs because of the patent undesirability of continuing the litigation between the applicant and the third respondent. The Court may make an order fixing costs, even though earlier costs orders in the proceeding contemplated taxation in the ordinary way: see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120 per von Doussa J (' Beach Petroleum '). 11 Naturally enough, the Court's discretion to fix costs must be exercised judicially and by reference to principle. In setting a gross fee, the Court must be "confident that the approach taken to estimate costs is logical, fair and reasonable": see Beach Petroleum at 123. As Von Doussa J said in Beach Petroleum at 123: "On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the costs estimates submitted to the Court..." His Honour held, at 124, that the starting point for fixing costs must be the charges rendered by the applicant's solicitors, although in a complex bill there are likely to be items taxed off and there may well be occasions in which a judge will make a discount. For example, in Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23 , O'Loughlin J held that the sum of costs fixed should be proportionate to the nature, including the complexity, of the case; and, that in a case involving a relatively simple cause of action, it was necessary to keep a firm control on costs, which should not be permitted "to explode".
Case: Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23
Outcome: cited
Naturally enough, the Court's discretion to fix costs must be exercised judicially and by reference to principle. In setting a gross fee, the Court must be "confident that the approach taken to estimate costs is logical, fair and reasonable": see Beach Petroleum at 123. As Von Doussa J said in Beach Petroleum at 123: "On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the costs estimates submitted to the Court..." His Honour held, at 124, that the starting point for fixing costs must be the charges rendered by the applicant's solicitors, although in a complex bill there are likely to be items taxed off and there may well be occasions in which a judge will make a discount. For example, in Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23 , O'Loughlin J held that the sum of costs fixed should be proportionate to the nature, including the complexity, of the case; and, that in a case involving a relatively simple cause of action, it was necessary to keep a firm control on costs, which should not be permitted "to explode".
Case: Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469
Outcome: cited
I have no doubt that the applicant sought to have regard to matters of this kind when it put forward the figure of $8,250. It should also be borne in mind that the financial inability of an unsuccessful party to meet costs is generally not a sufficient reason to deprive a successful part of a costs award: see Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469 and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 709.
Case: MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 709
Outcome: cited
I have no doubt that the applicant sought to have regard to matters of this kind when it put forward the figure of $8,250. It should also be borne in mind that the financial inability of an unsuccessful party to meet costs is generally not a sufficient reason to deprive a successful part of a costs award: see Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469 and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 709.
Case: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 , 192 ALR 71
Outcome: applied
Court may permit new grounds to be raised on appeal which were not raised before the Federal Magistrates Court. But there are very real reasons why it should not too readily do so, including: the fact that the relevant jurisdiction conferred on this Court is an appellate jurisdiction; the fact that this Court, in exercising that appellate jurisdiction, is entitled to the not inconsiderable benefit of the reasons for decision of a Federal Magistrate in respect to the issues sought to be agitated by a party to the proceeding; the principle that a party who has had a case resolved against him should usually not be permitted on appeal to raise a completely new or different case to that previously advanced; the principle that to permit a whole new case to be run on appeal has the potential to undermine the appellate process by rendering the trial process almost irrelevant; the fact that there is a legitimate public interest in public law matters being resolved in a timely and efficient manner and that the Minister has a legitimate interest in the timely resolution of applications for protection visas; and the fact that the High Court, in the event that an application for special leave to appeal is granted, is entitled to the benefit of a decision at first instance on the arguments sought to be resolved and to this Court's reasons for decision in respect to the same issues on appeal. To pursue any other course is to shift to the High Court the appellate role which it is the responsibility of this Court to discharge. These are but some of the matters that have been referred to in earlier decisions of this Court: e.g. Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 per Lander J; SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 per Spender J.
Case: Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 , 116 FCR 154
Outcome: referred to
now Appellant's ability to enter Singapore was said by the Tribunal to derive from his right to permanent residence in Singapore. His passport thus bore the following endorsement: A permanent resident requires a Re-entry Permit if he/she wishes to travel out of Singapore. A valid Re-entry Permit enables him/her to return to Singapore as a permanent resident. It also bore the following additional endorsement: Re-Entry Permit This permit is valid for multiple journeys within five years from date hereof provided the travel document is valid. The holder is authorised to re-enter Singapore for permanent residence so long as this permit is valid. The date of the endorsement is 27 November 2006. It may further be noted that the Tribunal's reasons further record: [74] ... When questioned on this, the applicant acknowledged that he had a right of return to Singapore as he is a permanent resident there. Based on the above, the Tribunal finds that the applicant has a right of entry and residence in Singapore at this time. No submissions were advanced in the present appeal that the Appellant's ability to enter Singapore was not a " right " within the meaning of and for the purposes of s 36(3): cf Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 , 116 FCR 154 ; SZLAN v Minister for Immigration and Citizenship [2008] FCA 904 , 171 FCR 145.
Case: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Outcome: applied
Court may permit new grounds to be raised on appeal which were not raised before the Federal Magistrates Court. But there are very real reasons why it should not too readily do so, including: the fact that the relevant jurisdiction conferred on this Court is an appellate jurisdiction; the fact that this Court, in exercising that appellate jurisdiction, is entitled to the not inconsiderable benefit of the reasons for decision of a Federal Magistrate in respect to the issues sought to be agitated by a party to the proceeding; the principle that a party who has had a case resolved against him should usually not be permitted on appeal to raise a completely new or different case to that previously advanced; the principle that to permit a whole new case to be run on appeal has the potential to undermine the appellate process by rendering the trial process almost irrelevant; the fact that there is a legitimate public interest in public law matters being resolved in a timely and efficient manner and that the Minister has a legitimate interest in the timely resolution of applications for protection visas; and the fact that the High Court, in the event that an application for special leave to appeal is granted, is entitled to the benefit of a decision at first instance on the arguments sought to be resolved and to this Court's reasons for decision in respect to the same issues on appeal. To pursue any other course is to shift to the High Court the appellate role which it is the responsibility of this Court to discharge. These are but some of the matters that have been referred to in earlier decisions of this Court: e.g. Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 per Lander J; SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 per Spender J.
Case: SZLAN v Minister for Immigration and Citizenship [2008] FCA 904 , 171 FCR 145
Outcome: referred to
now Appellant's ability to enter Singapore was said by the Tribunal to derive from his right to permanent residence in Singapore. His passport thus bore the following endorsement: A permanent resident requires a Re-entry Permit if he/she wishes to travel out of Singapore. A valid Re-entry Permit enables him/her to return to Singapore as a permanent resident. It also bore the following additional endorsement: Re-Entry Permit This permit is valid for multiple journeys within five years from date hereof provided the travel document is valid. The holder is authorised to re-enter Singapore for permanent residence so long as this permit is valid. The date of the endorsement is 27 November 2006. It may further be noted that the Tribunal's reasons further record: [74] ... When questioned on this, the applicant acknowledged that he had a right of return to Singapore as he is a permanent resident there. Based on the above, the Tribunal finds that the applicant has a right of entry and residence in Singapore at this time. No submissions were advanced in the present appeal that the Appellant's ability to enter Singapore was not a " right " within the meaning of and for the purposes of s 36(3): cf Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 , 116 FCR 154 ; SZLAN v Minister for Immigration and Citizenship [2008] FCA 904 , 171 FCR 145.
Case: SZMRD v Minister for Immigration and Citizenship [2009] FCA 598
Outcome: cited
Court may permit new grounds to be raised on appeal which were not raised before the Federal Magistrates Court. But there are very real reasons why it should not too readily do so, including: the fact that the relevant jurisdiction conferred on this Court is an appellate jurisdiction; the fact that this Court, in exercising that appellate jurisdiction, is entitled to the not inconsiderable benefit of the reasons for decision of a Federal Magistrate in respect to the issues sought to be agitated by a party to the proceeding; the principle that a party who has had a case resolved against him should usually not be permitted on appeal to raise a completely new or different case to that previously advanced; the principle that to permit a whole new case to be run on appeal has the potential to undermine the appellate process by rendering the trial process almost irrelevant; the fact that there is a legitimate public interest in public law matters being resolved in a timely and efficient manner and that the Minister has a legitimate interest in the timely resolution of applications for protection visas; and the fact that the High Court, in the event that an application for special leave to appeal is granted, is entitled to the benefit of a decision at first instance on the arguments sought to be resolved and to this Court's reasons for decision in respect to the same issues on appeal. To pursue any other course is to shift to the High Court the appellate role which it is the responsibility of this Court to discharge. These are but some of the matters that have been referred to in earlier decisions of this Court: e.g. Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 per Lander J; SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 per Spender J.
Case: SZNSL v Minister for Immigration and Citizenship [2009] FMCA 996
Outcome: affirmed
1 July 2009 the Appellant filed an Application in the Federal Magistrates Court of Australia. The grounds upon which that Application was advanced were expressed as follows (without alteration): The Tribunal denied procedural fairness at the time of the assessment of applicant claim The Refugee Review Tribunal's decision was unjust and was made without taking into account the full gravity of the applicant's circumstances of the decision. That Court addressed those grounds and dismissed the Application on 23 September 2009: SZNSL v Minister for Immigration and Citizenship [2009] FMCA 996. In the course of resolving these two grounds, the Federal Magistrate also set forth the Tribunal's analysis of s 36 of the Migration Act 1958 (Cth) (the " Migration Act ") and its application to the now Appellant. A Notice of Appeal was thereafter filed with this Court on 13 October 2009. The Grounds of Appeal were expressed as follows (without alteration): The Tribunal made a jurisdictional error 'by failing to apply the correct test to determine that there was a real chance of persecution' in assessing whether the appellant's fear of persecution was well-founded. His Honor committed an error of law in dismissing that the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the facts of the case found by the Refugee Review Tribunal. The Tribunal decision was an improper exercise of the power conferred by the Migration Act or the regulations. The Appellant appeared before this Court on 23 November 2009 unrepresented, although he did have the benefit of an interpreter.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: cited
must always be recognised, however, that leave to raise a ground of appeal which was not previously relied upon may be granted where " it is expedient in the interests of justice to do so ": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] . The reference in the Grounds of Appeal to the Tribunal's alleged failure " to apply the correct test to determine that there was a real chance of persecution " permitted (perhaps) of some ambiguity. On one view, the Ground could be construed as a broadly expressed challenge to: the correct construction and application of s 36 of the Migration Act . On another view, the Ground could be construed as a challenge to: the findings made by the Tribunal in respect to the " chance of persecution " confronting the now Appellant. It is not considered that the alternative manner of expressing the Grounds of Appeal raises any different issue.
Case: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 
Outcome: applied
is submitted on the part of the applicant that the decision to proceed failed to comply with the obligations of s 425 in the context of the Act as it then stood and was also a breach of the rules of procedural fairness sufficient to amount to jurisdictional error. I am not satisfied that this was a breach of s 425 of the Act for the reasons explained by Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (NAHF) [2003] FCA 140 ; (2003) 128 FCR 359, particularly at [25] [30]. However, I am satisfied, in the particular circumstances of this case, that what occurred was an unreasonable refusal of an opportunity to present a case sufficient to breach the rules of natural justice or procedural fairness, again as generally explained by Hely J in ( NAHF ) at [31] [39], that reasoning being supported, at least, by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553. I also refer to the passage relied upon by counsel for the applicant from the judgment of Gummow and Gaudron JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at [40] .
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: applied
is submitted on the part of the applicant that the decision to proceed failed to comply with the obligations of s 425 in the context of the Act as it then stood and was also a breach of the rules of procedural fairness sufficient to amount to jurisdictional error. I am not satisfied that this was a breach of s 425 of the Act for the reasons explained by Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (NAHF) [2003] FCA 140 ; (2003) 128 FCR 359, particularly at [25] [30]. However, I am satisfied, in the particular circumstances of this case, that what occurred was an unreasonable refusal of an opportunity to present a case sufficient to breach the rules of natural justice or procedural fairness, again as generally explained by Hely J in ( NAHF ) at [31] [39], that reasoning being supported, at least, by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553. I also refer to the passage relied upon by counsel for the applicant from the judgment of Gummow and Gaudron JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at [40] .