mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402
Outcome: cited
Lundbeck referred to the following authorities for the proposition that, generally speaking, a power to make regulations is not construed so as to authorise the making of regulations which widen, vary or depart from positive provisions of the enabling Act, extend the scope and general operation of that Act, or operate in a way that is otherwise than strictly ancillary: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 250, 254; Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640; Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293 at 298-9; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 380; Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88 at 92; Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402 at 410. However, the starting point in each case is the empowering section. In the present case, s 228(1)(b) does not stand alone: there is s 228(2)(e) to be considered.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
Lundbeck referred to the following authorities for the proposition that, generally speaking, a power to make regulations is not construed so as to authorise the making of regulations which widen, vary or depart from positive provisions of the enabling Act, extend the scope and general operation of that Act, or operate in a way that is otherwise than strictly ancillary: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 250, 254; Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640; Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293 at 298-9; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 380; Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88 at 92; Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402 at 410. However, the starting point in each case is the empowering section. In the present case, s 228(1)(b) does not stand alone: there is s 228(2)(e) to be considered.
Case: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245
Outcome: cited
Lundbeck referred to the following authorities for the proposition that, generally speaking, a power to make regulations is not construed so as to authorise the making of regulations which widen, vary or depart from positive provisions of the enabling Act, extend the scope and general operation of that Act, or operate in a way that is otherwise than strictly ancillary: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 250, 254; Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640; Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293 at 298-9; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 380; Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88 at 92; Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402 at 410. However, the starting point in each case is the empowering section. In the present case, s 228(1)(b) does not stand alone: there is s 228(2)(e) to be considered.
Case: Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629
Outcome: cited
Lundbeck referred to the following authorities for the proposition that, generally speaking, a power to make regulations is not construed so as to authorise the making of regulations which widen, vary or depart from positive provisions of the enabling Act, extend the scope and general operation of that Act, or operate in a way that is otherwise than strictly ancillary: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 250, 254; Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640; Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293 at 298-9; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 380; Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88 at 92; Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402 at 410. However, the starting point in each case is the empowering section. In the present case, s 228(1)(b) does not stand alone: there is s 228(2)(e) to be considered.
Case: Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293
Outcome: cited
Lundbeck referred to the following authorities for the proposition that, generally speaking, a power to make regulations is not construed so as to authorise the making of regulations which widen, vary or depart from positive provisions of the enabling Act, extend the scope and general operation of that Act, or operate in a way that is otherwise than strictly ancillary: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 250, 254; Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640; Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293 at 298-9; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 380; Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88 at 92; Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402 at 410. However, the starting point in each case is the empowering section. In the present case, s 228(1)(b) does not stand alone: there is s 228(2)(e) to be considered.
Case: Bennett v United Kingdom (2001) 179 ALR 113
Outcome: discussed
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 a Full Court of this Court held at 303-4 that in order to determine whether a person was "eligible for surrender" the magistrate was required to determine, amongst other things, whether the offence was one which qualifies as an "extradition offence". In my opinion Zoeller, on this point, has been impliedly overruled by Kainhofer and for that reason I would not follow it. I am conscious that Katz J in Bennett v United Kingdom (2001) 179 ALR 113 at [6], which was decided after Kainhofer, followed Zoeller on this point. As his Honour observed, however, no argument was mounted that Kainhofer by implication overruled Zoeller in this respect and he did not consider the merits of such an argument.
Case: Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315
Outcome: cited
applicant, pursuant to s 21 of the Act, seeks a review of the second respondent's determination of 20 August 2008. Section 21(2) of the Act confines the power of the review court to confirming or quashing the order of the magistrate; the matter cannot be remitted to the magistrate - Zoeller v Federal Republic of Germany (1989) 90 ALR 555 at 563 and Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315 at 321. Where a review process undertaken by a court concerns, as is the case here, an issue arising under s 19(2) of the Act, that review is undertaken by way of a rehearing: Republic of South Africa v Dutton (1997) 77 FCR 128 at 136; 147 ALR 310 at 317. Section 21(6)(d) of the Act prescribes that the review court shall have regard only to the material before the magistrate: Zoeller at 582; Brock v Minister for Justice and Customs at 321; Snedden v Republic of Croatia [2009] FCA 30 at [18] .
Case: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386
Outcome: referred to
different stages of the extradition process within the framework of the Act were summarised by the Full Federal Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389. The Full Court observed: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional arrest warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, a provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. By virtue of s 11(1)(a) of the Act, regulations may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations. Relevantly, Hungary is declared to be an extradition country pursuant to regulation 3 of the Regulations. By virtue of s 5 of the Act any country "that is declared by the regulations to be an extradition country" is an "extradition country" for the purposes of the Act.
Case: Oates v Attorney-General of the Commonwealth (2002) 118 FCR 544
Outcome: cited
there is some support to be found for the applicant's earlier written submission in the observations of O'Loughlin and Whitlam JJ in Oates v Attorney-General of the Commonwealth (2002) 118 FCR 544 at [25]. However, even if this submission were made good it could not, in my opinion, affect the result in this case. I have already noted the binding effect of the opinion of the Attorney-General expressed in the Notice, that the applicant is an extraditable person. It was open to the applicant to have sought review under s 39B of the Judiciary Act 1903 (Cth) of the Attorney-General's decision to issue the Notice under s 16(1) of the Act: Kainhofer at pp 538-539. He did not do so.
Case: Papzoglou v Republic of the Philippines (1997) 74 FCR 108
Outcome: applied
a Full Court of this Court held in Papzoglou v Republic of the Philippines (1997) 74 FCR 108 at 140, s 11(6) of the Act makes clear that whatever the proper construction of s 19(2) of the Act, the matters that a magistrate has to consider in proceedings to determine eligibility for surrender under s 19(2) do not include restrictions or limitations arising under a treaty. In my opinion, the same necessarily applies to the application of s 19(1) of the Act. The applicant sought to distinguish the terms of the treaty relied upon in Papzoglou from Article 2 para 5 which is relied upon in this case. He submits that the treaty provision that was sought there to be incorporated in the s 19 process was a treaty provision that required the requested state to take into account the question of whether the extradition of the person would be unjust, oppressive, incompatible with humanitarian considerations, or too severe a punishment. I do not accept this submission, to the effect that s 11(6) is directed only to the operation of s 19(2)(a)-(d). In terms it governs the whole of s 19 and, in particular, is directed to the determination under s 19(1) by the magistrate as to eligibility for surrender of the person in relation to the extradition offence. I observed earlier, at [31]-[32] above, that the written submission of the applicant, concerning the effect of Art 2 para 5 of the Treaty upon the Act, was that it altered the definition of "extradition offence" in s 5 to exclude, in this case, an offence which was not an offence at the time the acts or omissions constituting the offence took place. In oral argument the applicant appeared to focus his submission rather on the effect Art 2 para 5 was said to have upon the matters to be considered by the magistrate under s 19(1) of the Act. Article 2 para 5 of the Treaty may operate in respect to s 16 and may also operate upon the exercise of the discretion of the Attorney-General under s 22(3)(e) of the Act. This is at the fourth phase of the extradition proceedings which are yet to occur: Todhunter v United States of America at p 75; Papzoglou at p 130.
Case: Republic of South Africa v Dutton (1997) 77 FCR 128
Outcome: cited
applicant, pursuant to s 21 of the Act, seeks a review of the second respondent's determination of 20 August 2008. Section 21(2) of the Act confines the power of the review court to confirming or quashing the order of the magistrate; the matter cannot be remitted to the magistrate - Zoeller v Federal Republic of Germany (1989) 90 ALR 555 at 563 and Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315 at 321. Where a review process undertaken by a court concerns, as is the case here, an issue arising under s 19(2) of the Act, that review is undertaken by way of a rehearing: Republic of South Africa v Dutton (1997) 77 FCR 128 at 136; 147 ALR 310 at 317. Section 21(6)(d) of the Act prescribes that the review court shall have regard only to the material before the magistrate: Zoeller at 582; Brock v Minister for Justice and Customs at 321; Snedden v Republic of Croatia [2009] FCA 30 at [18] .
Case: Snedden v Republic of Croatia [2009] FCA 30
Outcome: cited
applicant, pursuant to s 21 of the Act, seeks a review of the second respondent's determination of 20 August 2008. Section 21(2) of the Act confines the power of the review court to confirming or quashing the order of the magistrate; the matter cannot be remitted to the magistrate - Zoeller v Federal Republic of Germany (1989) 90 ALR 555 at 563 and Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315 at 321. Where a review process undertaken by a court concerns, as is the case here, an issue arising under s 19(2) of the Act, that review is undertaken by way of a rehearing: Republic of South Africa v Dutton (1997) 77 FCR 128 at 136; 147 ALR 310 at 317. Section 21(6)(d) of the Act prescribes that the review court shall have regard only to the material before the magistrate: Zoeller at 582; Brock v Minister for Justice and Customs at 321; Snedden v Republic of Croatia [2009] FCA 30 at [18] .
Case: Todhunter v United States of America (1995) 57 FCR 70
Outcome: cited
11(1C) of the Act provides that for the purposes of sub-s (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that "this Act applies to the country concerned subject to that treaty." By virtue of regulation 4 of the ons, the Act applies in relation to the Republic of Hungary "subject to the Treaty." Regulation 4 provides: "The [Act] applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (a copy of which is set out in the Schedule)." The effect of the regulations is to import the terms of the Treaty into the municipal law: Todhunter v United States of America (1995) 57 FCR 70 at 76. This is subject to the provisions of s 11(6) of the Act. Section 11(6) of the Act provides that for the purpose of determining whether a person is eligible for surrender under s 19(1) "no limitation, condition, qualification or exception otherwise applicable under this section ... has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d)." The hearing before the second respondent was the third stage in these extradition proceedings; that is, a determination under s 19 of the Act as to whether the applicant was eligible for surrender. Article 2 para 5 of the Treaty may operate in respect to s 16 and may also operate upon the exercise of the discretion of the Attorney-General under s 22(3)(e) of the Act. This is at the fourth phase of the extradition proceedings which are yet to occur: Todhunter v United States of America at p 75; Papzoglou at p 130.
Case: SZHIB v Minister for Immigration &amp; Anor [2006] FMCA 137
Outcome: referred to
The bases of the appellant's claims to be entitled to a protection visa are set out in detail in the reasons for decision of the Tribunal. They are also summarised in the decision of Scarlett FM: see SZHIB v Minister for Immigration &amp; Anor [2006] FMCA 137. 5 The appellant claims to have been a driver for senior leaders of the Chengbei Industry General Corporation from 1995. In the course of those duties, he became privy to certain views and actions to be taken concerning Mr Guo, a politically active farmer. The appellant became aware that Mr Guo had been or would be falsely incriminated, and consequently the appellant wrote to the People's Court and Procuratorate to let them know the truth. As a result of his actions, the appellant claims to have dismissed from the Chengbei Industry General Corporation in September 1999. He subsequently became a freelance driver after purchasing a second-hand truck. 6 The appellant claims that in January 2003 he became involved in a farmers' union at the behest of Mr Guo and another person by the name of Mr Cong. The farmers' union was known as the Farmer's Self-Supported Association ('the Association'). The appellant says that Mr Guo and Mr Cong requested him to be the public face of the Association because the other men had ongoing problems with the authorities.
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: cited
There is, moreover, a second reason for rejecting the appellant's arguments based on s 424A. In my opinion, if any material in the protection visa application was relied upon by the Tribunal as a basis for its findings concerning inconsistencies in the appellant's evidence and its adverse finding on his credibility, that material was republished by the letter accompanying the application to the Tribunal. I have already referred to the content of that letter. The appellant's letter incorporates, in my view, the substantive claims made in the appellant's statutory declaration which supported his application for a protection visa. It follows that the information in the protection visa application became information given by the appellant to the Tribunal within the meaning of subs (3)(b) of s 424A. This view is supported by the authorities: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 ; and SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034.
Case: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271
Outcome: cited
There is, moreover, a second reason for rejecting the appellant's arguments based on s 424A. In my opinion, if any material in the protection visa application was relied upon by the Tribunal as a basis for its findings concerning inconsistencies in the appellant's evidence and its adverse finding on his credibility, that material was republished by the letter accompanying the application to the Tribunal. I have already referred to the content of that letter. The appellant's letter incorporates, in my view, the substantive claims made in the appellant's statutory declaration which supported his application for a protection visa. It follows that the information in the protection visa application became information given by the appellant to the Tribunal within the meaning of subs (3)(b) of s 424A. This view is supported by the authorities: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 ; and SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034.
Case: SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
Outcome: cited
There is, moreover, a second reason for rejecting the appellant's arguments based on s 424A. In my opinion, if any material in the protection visa application was relied upon by the Tribunal as a basis for its findings concerning inconsistencies in the appellant's evidence and its adverse finding on his credibility, that material was republished by the letter accompanying the application to the Tribunal. I have already referred to the content of that letter. The appellant's letter incorporates, in my view, the substantive claims made in the appellant's statutory declaration which supported his application for a protection visa. It follows that the information in the protection visa application became information given by the appellant to the Tribunal within the meaning of subs (3)(b) of s 424A. This view is supported by the authorities: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 ; and SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: cited
Scarlett FM relied upon a third basis for rejecting the appellant's argument based on s 424A. The third basis was that the inconsistencies identified by the Tribunal did not, in his Honour's opinion, constitute 'information' within the meaning of s 424A(1). The first respondent submitted that this ground must now be viewed as incorrect, having regard to the decision of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. For the purposes of this appeal, I need do no more than assume that the first respondent is correct in submitting that the third ground can no longer be correctly advanced, having regard to the decision of the Full Court. It does not follow that Scarlett FM's decision is rendered invalid or erroneous by virtue of a reliance on this third ground. The decision was capable of standing independently on one or other of the two grounds that I have earlier discussed. 25 I turn to consider the appellant's claims based on s 425 of the Act. Section 425 provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review. 26 The appellant appeared to make essentially two points in relation to s 425. The first point was that he was not given a proper opportunity to make oral submissions and set out his entire case in full; rather, he was constantly interrupted by questions from the Tribunal. As a result, the appellant says that he did not get the chance to give his oral evidence completely, and became confused and lost as a result of the Tribunal's questioning. Having carefully read the Tribunal's reasons, I have concluded that the Tribunal did not conduct its proceedings in a way which involved any contravention of s 425. The Tribunal invited the appellant to appear before it to give evidence and present arguments, and the appellant had the opportunity of doing precisely that. Section 425 is not infringed by virtue of the fact that the Tribunal asked many questions of the appellant. In any event, it is clear from the Tribunal's reasons that the appellant was invited to make any submission or argument that he wished at the hearing, having regard to the questions that had been posed by the Tribunal.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
More generally, I should observe that the application before the Tribunal failed essentially because the Tribunal did not accept the appellant's claims, having regard to the findings which it made concerning his credibility. Credibility findings are the function of the primary decision-maker, par excellence, as McHugh J said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 [67] . On appeal from a decision of the Federal Magistrates Court, this Court is not required to embark upon a re-hearing of the facts or the evidence heard by the Tribunal: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] .