mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Akpata v MIMIA [2004] FCAFC 65
Outcome: considered
Lander J in Akpata v MIMIA [2004] FCAFC 65 (with whom Carr and Sundberg JJ agreed) said of the purpose of s 501: [103] Section 501 is designed to provide a procedure whereby persons who have been granted visas or persons who would otherwise be entitled to the grant of a visa may have that visa cancelled or refused if those persons are undesirable persons to travel to or remain in Australia . Persons will be undesirable if they fail to pass the character test. ... [105] The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals ; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia . Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister's discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia. (Emphases added). 232 For the Minister, it is said that the approach for the applicant to the interpretation of s 501(6)(b) is to impose limitations in the section, which do not exist, and which could have been easily imposed if the legislature had so intended. 233 However, the submissions by the Minister attribute to the applicant a desire to introduce limitations, which in fact the applicant does not seek to do. The Minister's submissions assert that the section does not say that the visa holder need be a member of a group or organisation, nor a participant in criminal activity, nor does the section say that the association of the visa holder with the person, group, or organisation, need be an ideological or criminal association, or an association by which the visa holder or applicant would benefit from the criminal activity. Moreover, the section does not say that the circumstances identified have to be such as to reflect adversely on the character of the visa holder or applicant. All of this may be accepted.
Case: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: considered
Section 501(3) of the Act confers a discretion on the Minister which is in terms "unconfined". The Minister is not bound to take a particular matter into account in the exercise of that discretion unless an implication to that effect is to be found in the subject matter, scope, and purpose of the statute: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40 (per Mason J, as his Honour then was). Failure to take into account a particular consideration cannot constitute jurisdictional error unless the consideration is one which, on the proper construction of the Act, is made compulsorily relevant: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423
Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: considered
Section 501(3) of the Act confers a discretion on the Minister which is in terms "unconfined". The Minister is not bound to take a particular matter into account in the exercise of that discretion unless an implication to that effect is to be found in the subject matter, scope, and purpose of the statute: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40 (per Mason J, as his Honour then was). Failure to take into account a particular consideration cannot constitute jurisdictional error unless the consideration is one which, on the proper construction of the Act, is made compulsorily relevant: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505
Outcome: considered
See also Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 314 at [5] ; and Minister for Immigration v Huynh (2004) 139 FCR 535 per Kiefel and Bennett JJ at [71]-[74].
Case: Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 314
Outcome: cited
See also Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 314 at [5] ; and Minister for Immigration v Huynh (2004) 139 FCR 535 per Kiefel and Bennett JJ at [71]-[74].
Case: Thompson v The Council of the Municipality of Randwick [1950] HCA 33 ; (1950) 81 CLR 87
Outcome: considered
If a discretionary statutory power is exercised for a purpose other than the purpose for which the power was conferred, the exercise of that power is invalid. The purpose for the grant of a power is to be derived from the statute conferring it. If there is a combination of purposes actuating the exercise of the discretionary power, the exercise will be invalid if an improper purpose was the "substantial" or the "true and dominant" purpose of the exercise of the power: Thompson v The Council of Municipality of the Randwick [1950] HCA 33 ; (1950) 81 CLR 87 at [186] ; Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 at [7]-[8].
Case: Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467
Outcome: considered
If a discretionary statutory power is exercised for a purpose other than the purpose for which the power was conferred, the exercise of that power is invalid. The purpose for the grant of a power is to be derived from the statute conferring it. If there is a combination of purposes actuating the exercise of the discretionary power, the exercise will be invalid if an improper purpose was the "substantial" or the "true and dominant" purpose of the exercise of the power: Thompson v The Council of Municipality of the Randwick [1950] HCA 33 ; (1950) 81 CLR 87 at [186] ; Samrein v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 at [7]-[8].
Case: Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
Outcome: considered
Thus in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, the Full Court of the Federal Court (Fox, Wilcox and French JJ) held that where a particular deportee was wanted by authorities in West Germany, of which he was a national, Australian authorities were entitled to do everything necessary for the enforcement of a deportation order under the Act, but were not entitled to go beyond that. In particular, the Court held that to deport a person to a particular country for the purpose of presenting a person to the law enforcement authorities of that country is outside the purposes of the Migration Act . 289 Wilcox and French JJ in their joint judgment said, at 731: The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act and the proper implementation of the deportation order. But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country. At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition.
Case: Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1988) 81 ALR 288
Outcome: distinguished
In Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1988) 81 ALR 288, the Full Court of the Federal Court (Sweeney and Foster JJ, Morling J dissenting) held that a deportation order had not been issued for the purpose of securing various persons' removal from Australia, but was to secure their continued detention in custody, so that their evidence would be available in contemplated criminal proceedings. 291 The decision of the Full Court upheld the decision of Davies J at first instance, to declare the deportation orders a nullity and set them aside. The matter went to the High Court, but only on the question of whether the Full Court had been correct in upholding the refusal of Davies J to make a declaration of unlawfulness. It was on this basis that the decision of the Full Court of the Federal Court was reversed.
Case: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517
Outcome: considered
In the High Court, Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 517, (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) referred to the findings of Davies J, confirmed by the Full Court, that more of the deportation orders had been made by the delegate of the Minister for the legitimate purpose of giving effect to a decision that a prohibited non-citizen should be deported as soon as appropriate arrangements for that deportation could be made, and that each had been made for the impermissible purpose of detaining the particular appellant in custody so that his evidence would be available in the criminal proceedings, and the conclusion of Davies J that the deportations were all intrinsically flawed. 293 Their Honours noted at 519: Davies J. held that each of them [the deportation orders] "should be treated as a nullity" and ordered that they be "set aside ab initio ". 294 A decision by the Minister to cancel a visa on character grounds under s 501 of the Migration Act , validly made, has the result of the visa thereupon ceases to be in effect: s 82(1) of the Migration Act . Thereafter, the person to whom the visa is issued is an unlawful non-citizen, in the terms of sections 14 and 15 of the Migration Act , is liable to detention under s 189 of the Migration Act , and for removal from Australia under s 198 of the Migration Act . 295 As a consequence of s 501E , no further application for the grant of a visa can be made by the person whose visa has been cancelled. The only exception, pursuant to s 501E(2)(a) , is an application for a protection visa. Because the person cannot, after cancellation, obtain a visa, that person's status has been determined for all time. That person is an unlawful non-citizen liable to detention and removal from Australia.
Case: Sydney Municipal Council v Campbell [1925] AC 338
Outcome: cited
A person challenging the exercise of a power on the basis of improper purpose has the onus of establishing that contention: Sydney Municipal Council v Campbell [1925] AC 338 at 343. Where the purpose of a decision has to be ascertained by inference from other facts, there is a presumption of regularity: Industrial Equity Limited v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 671 per Gaudron J.
Case: Industrial Equity Limited v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649
Outcome: cited
A person challenging the exercise of a power on the basis of improper purpose has the onus of establishing that contention: Sydney Municipal Council v Campbell [1925] AC 338 at 343. Where the purpose of a decision has to be ascertained by inference from other facts, there is a presumption of regularity: Industrial Equity Limited v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 671 per Gaudron J.
Case: Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543
Outcome: considered
In Cross on Evidence (6 th Edition, Butterworth, 2000), the learned authors stated at p 39: A Jones v Dunkel inference can be drawn against a Minister who does not give evidence, [ Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 62] notwithstanding that the difficulties busy Ministers could have in giving evidence frequently might justify a departure from the ordinary application of Jones v Dunkel. [ Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548.]
Case: Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373
Outcome: cited
In Lebanese Moslem Association (reversed on other points of law in Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373) Pincus J, at 548, found it "hard to resist" drawing certain inferences that assisted the applicants in that case. This was despite the fact that Senior Counsel to the respondent Minister argued, so Pincus J said, "with some cogency that performance of his ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions." 322 After stating, at [316], that Pincus J only hesitantly concluded in Lebanese Moslem Association that the rule applied to Ministers not giving evidence, Callinan J said, at [317]: It is unnecessary to decide in this case whether the rule should have application to a Minister in modern times. But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent. Considerations of public interest immunity may loom large in some cases. A Minister is a policymaker and policy advocate as well as a decision-maker. Further, the statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer and cited recently by this Court in Vetter v Lake Macquarie City Council , that evidence has to be weighed according to the circumstances of, as well as the capacity of, a party to adduce it. 325 However, in most, if not all, cases, because of the factors expressed by Pincus J, and also Kirby J and Callinan J in the passages set out above, the absence of a Minister giving evidence in the for the witness box will be easily understood.
Case: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40
Outcome: considered
In Cross on Evidence (6 th Edition, Butterworth, 2000), the learned authors stated at p 39: A Jones v Dunkel inference can be drawn against a Minister who does not give evidence, [ Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 62] notwithstanding that the difficulties busy Ministers could have in giving evidence frequently might justify a departure from the ordinary application of Jones v Dunkel. [ Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548.] 318 In Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia , the Full Court of the Federal Court (Black CJ, Burchett and Kiefel JJ) at 62 (citing the Lebanese Moslem Association ) concluded that the Minister's failure to call evidence allowed the Court to more confidently draw an inference favourable to the other party. See also Citibank Ltd v Federal Commissioner of Taxation &amp; Others (1988) 83 ALR 144 at 159, where Lockhart J notes that if the inference is capable of applying to Ministers and senior corporate executives, then it is capable of applying to senior public servants (citing to Lebanese Moslem Association, Cross on Evidence, and Electronics Industries Ltd v Mayor of City of Oakleigh [1973] VR 177 at 189).
Case: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152
Outcome: considered
More recently, in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [72] , Sackville J referred to the High Court's observations in Jia but found it unnecessary to decide whether it applied to the circumstances of the case before him which did not involve purported bias by the Minister as was the case in Jia , but rather, failure to have regard to certain information. Sackville J had concluded, at [71], that assuming the rule applied, it would not assist the applicant.
Case: Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Outcome: cited
Given the rule in Jones v Dunkel is one of the "commonsense reasoning" and one which allows parties to satisfactorily explain their failure to call a witness ( Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 342), there can be no per se rule that a Jones v Dunkel inference is not available where a Minister does not testify.
Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: referred to
The Federal Court is a court of limited jurisdiction. Pursuant to s 19 of the Federal Court of Australia Act , the Court only has jurisdiction where the Parliament has specifically conferred jurisdiction upon the Court (see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150) or where the accrued or associated jurisdiction of the Court arises. 21 Mr Croker's claim against the Commissioner is based in tort. He has variously relied upon the Constitution , the Bankruptcy Act , the Judiciary Act and the common law as the basis of the Court's jurisdiction. 22 Section 56 of the Judiciary Act , on which Mr Croker relied, provides as follows: '(1) A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth: (a) in the High Court; (b) if the claim arose in a State or Territory--in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or (c) if the claim did not arise in a State or Territory--in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory. (2) For the purposes of paragraphs (b) and (c) of the last preceding subsection: (a) any court exercising jurisdiction at any place in the capital city of a State, or in the principal or only city or town of a Territory, that would be competent to hear the suit if the Commonwealth were, or had at any time been, resident in that city or town, or in a particular area in that city or town, is a court of competent jurisdiction; and (b) any other court is not a court of competent jurisdiction if its competence to hear the suit would depend upon the place where the Commonwealth resides or carries on business or at any time resided or carried on business.'
Case: Trade Practices Commission v David Jones (Australia) Pty Ltd &amp; Ors (1985) 7 FCR 109
Outcome: referred to
Further, the Court considers that Mr Croker's application and statement of claim do not disclose any reasonable cause of action. The elements of a cause of action in tort, either of malicious prosecution or of misfeasance in public office, are not pleaded in his application. Pleadings must contain a statement of the material facts relied upon to support the cause of action: O 11 r 2 FCR. In Trade Practices Commission v David Jones (Australia) Pty Ltd &amp; Ors (1985) 7 FCR 109, Fisher J considered a motion for strike out of a statement of claim. His Honour said at 114: Paragraph 15 of the statement of claim does not state any material facts. It is merely a statement of a conclusion drawn from facts which are not in the statement of claim. Standing alone, par 15 does not disclose a reasonable cause of action against the respondents. Furthermore all of the authorities abovementioned very clearly indicate that material facts set out in the particulars can not be used to make good the deficiencies in the statement of claim.
Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: referred to
In my opinion, Mr Croker's application and statement of claim in the present case are in a similar position. Although it sets out conclusions, for example with respect to the motivation of the Commissioner of Taxation in issuing the bankruptcy notices, it does not state the facts upon which those conclusions are based. The application and statement of claim do not contain the material facts on which the claim is made, and therefore do not disclose a reasonable cause of action. The application as pleaded could not be sustained. In Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378, the majority of the High Court observed: '... it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.' 30 Accordingly, even if the Court did have jurisdiction to hear these claims, the Court would strike out the pleadings under O 11 r 16 of the FCR. 31 For the reasons set out above, the Court will dismiss Mr Croker's application on the basis that the Court does not have jurisdiction to hear and determine the matter. In the circumstances, costs of the application and of the Commissioner's motion should be awarded in favour of the Commissioner.
Case: Australian Competition &amp; Consumer Commission v CG Berbatis Holdings Pty Limited (2003) 214 CLR 51
Outcome: considered
51AA incorporates into the Act the unwritten law in relation to unconscionable conduct thereby extending the remedies available under the Act for unconscionable conduct to the extent that this concept is presently part of the common law or equitable principles recognised by the courts. Unconscionable conduct is conduct which attracts a sufficient level of judicial opprobrium to support the grant of relief based on principles set out in specific equitable doctrines established by Courts of Equity: Australian Competition &amp; Consumer Commission v CG Berbatis Holdings Pty Limited (2003) 214 CLR 51. Unconscionability is a concept which requires a high level of moral obloquy. It is not necessary for the party who has benefited from a transaction challenged as unconscionable to itself have created the special advantage which forms the basis of the unconscionability claim. It is sufficient if that party knows, or ought to have known, of the other party's situation of special disadvantage and takes unfair advantage of the opportunity presented: Louth v Diprose [1992] HCA 61 ; (1992) 175 CLR 621. A person will be under a special disadvantage if there are circumstances seriously affecting the ability of the person to make a judgement in his or her own best interests: Berbatis Holdings per Gleeson CJ at [5]. A person is not under a special disadvantage simply because of inequality of bargaining power: Berbatis Holdings .
Case: Australian Competition &amp; Consumer Commission v Chats House Investments (1996) 71 FCR 250 
Outcome: referred to
the present circumstances, the unconscionable conduct on the part of Zanok was the promise that, in return for a fee, the applicant would receive training and thereafter guaranteed skilled employment in circumstances where Zanok knew or ought to have known that many of the applicants were temporary residents and anxious to find skilled employment to assist with their applications for permanent resident status. This conduct constituted more than simply taking advantage of a superior bargaining position but involved an unconscientious exploitation of another's inability or diminished ability to conserve his or her own interests. Dangling the 'employment carrot' in return for a fee in circumstances in which the applicant faces having to leave Australia, constitutes a high level of moral obloquy especially where the promised employment does not exist: Australian Competition &amp; Consumer Commission v Chats House Investments (1996) 71 FCR 250. In the circumstances, the ACCC submitted the Court should make a declaration in terms of para 1 of the amended application.