mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275
Outcome: cited
The width of the meaning of the words 'in connection with', and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68] , Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275.
Case: Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1
Outcome: cited
Secondly, even if there was conduct of the second respondent which was capable of being reviewed under s 6 ADJR Act, the courts approach with caution applications for an order of review in relation to conduct where the conduct has been superseded by a decision. As pointed out by Sackville J (Jenkinson J agreeing) in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 22-23: 'In particular, where a decision has been made, the Court will ordinarily review that decision, and should be cautious about reviewing the conduct engaged in for the purpose of making the decision.' (see also Kiefel J at 40, and note the commentary on this issue in G Flick Federal Administrative Law , Thomson Lawbook Co par 3116) 70 In this case a decision was made by the second respondent two years ago to issue a search warrant. In my view, if any review were to be undertaken by the Court it should be of that decision, however as already indicated the Court lacks jurisdiction to do so under s 9A ADJR Act. It is clear that the decision of the second respondent to issue the search warrant is a 'related criminal justice process decision', within the meaning of s 9A(4)(a)(i) or (iii), with respect to the offences for which the applicant is currently facing prosecution, in that the decision of the second respondent to issue the search warrant was 'in connection with' the investigation, or more obviously 'in connection with' the issue of a search warrant. The application of the applicant for an order of review of that decision is also clearly 'in relation to' that decision.
Case: O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356
Outcome: cited
The application proceeds on the basis that review is sought of the warrant executed by the second respondent in that she acted beyond power in executing the search warrant. Further, the grounds of the application refer to the justice of the peace acting in breach of her duty, in not giving the search warrants proper consideration and perverting the course of justice. 17 As is clear from correspondence attached to the applicant's affidavit sworn 24 August 2006, only one of the search warrants executed on the applicant's residence, vehicles and business premises was executed by the second respondent. Therefore in seeking to review the actions of the second respondent, the application can only be referring to one search warrant. It is also clear that the only search warrant attached to the applicant's affidavit sworn 24 August 2006, or indeed appearing anywhere in the documentation before this Court, is the search warrant executed by the second respondent on 22 September 2004. 18 Further, in submissions, both written and oral, it became clear that both parties were proceeding on the basis that this application did in fact only relate to the warrant issued by the second respondent. 49 Earlier in this judgment I considered the meaning of 'decision' and 'in connection with' in the context of s 9A(4)(a). The differences between 'in connection with' and 'in relation to' are, as a general proposition, minimal (cf French J in Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303). Indeed, related criminal justice process decisions are defined by the fact that there is a 'connection' between a decision and some other event, such as the issue of a warrant. 'In relation to' was explained by McHugh J in O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 in the following terms: 'The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. ' (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (Cth) [2002] FCAFC 226 at [68] ) 50 Despite the breadth of the term 'in relation to', the cases also make it clear that in deciding the nature and closeness or remoteness of the connection required and therefore whether there is a necessary 'relationship', the legislative context and purpose should be considered (Dawson J in O'Grady at 367, Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services [1995] HCA 36 ; (1995) 184 CLR 301 at 313, Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 221 at [26] - [34] ).
Case: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 577
Outcome: followed
The expression 'in connection with' is a commonly-used legislative expression. It has been the subject of extensive judicial comment. A useful commentary on the expression in the context of the ADJR Act can be found in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 577 where Wilcox J, in considering the meaning of 'in connection with' in s 5(1)(b) of the Act, observed that: 'The words "in connexion with" have a wide connotation, requiring merely a relation between one thing and another. They do not necessarily require a causal relationship between the two things... They may be used to describe a relationship with a contemplated future event.' (at 591-592)
Case: Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103
Outcome: considered
In any event, Mr Porter for the first respondent also submitted that even if the applicant articulates his complaint as being in respect of the 'conduct' of the second respondent in issuing the warrant, s 9A(1) is relevant because the section applies not just to an application to review criminal justice process decisions, but to an application 'in relation to' a criminal justice process decision. Two issues flow from this proposition, namely: &#8226; As I discussed earlier in my judgment the phrase 'in relation to' has a wide meaning, although it should also be considered in the context in which it is found. It is arguable that an application for an order of review of conduct in the context of which a criminal justice process decision has been made, is itself 'an application in relation to a criminal justice process decision'. &#8226; I note the particular wording of s 9A, namely that it excludes from the jurisdiction of the Court applications in relation to a related criminal justice process decision. This may be contrasted with, for example, the circumstances before Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 where s 485 of the Migration Act 1958 (Cth) specifically provided that the Federal Court did 'not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subs 475(2)'. In that case Merkel J found that although the legislation excluded judicial review of decisions, it did not exclude the operation of s 6 ADJR Act to review conduct. In the case before me however s 9A excludes applications, in relation to decisions , which could include conduct. 72 It is not strictly necessary to decide this point because of the views I have taken about the claim of the applicant in relation to the decision of the second respondent, and the fact that it is not appropriate to review the conduct to which the applicant has referred because it has been superseded by a decision. However, to avoid uncertainty, I am of the view that s 9A operates to exclude an application for review of a person's conduct in the course of making a related criminal justice process decision. I take this view because: &#8226; as a matter of policy, it would defeat the intention of s 9A if a defendant could seek review under s 6 of such conduct, which could have the effect of unmeritoriously delaying criminal proceedings in another court &#8226; it would be absurd in light of the legislative intention in enacting s 9A if an application for an order of review of a criminal justice process decision was excluded from the jurisdiction of the Federal Court, but an application for an order of review of conduct relevant to that criminal justice process decision was not so excluded &#8226; the language of s 9A has, it appears, been drafted deliberately widely to encompass applications in relation to such conduct.
Case: PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services [1995] HCA 36 ; (1995) 184 CLR 301
Outcome: cited
Despite the breadth of the term 'in relation to', the cases also make it clear that in deciding the nature and closeness or remoteness of the connection required and therefore whether there is a necessary 'relationship', the legislative context and purpose should be considered (Dawson J in O'Grady at 367, Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services [1995] HCA 36 ; (1995) 184 CLR 301 at 313, Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 221 at [26] - [34] ).
Case: Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638
Outcome: followed
His Honour also adopted comments of MacFarlane J in Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638: 'One of the very generally accepted meanings of "connection" is "relation between things one of which is bound up with or involved in another"; or again "having to do with". The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase "having to do with" perhaps gives as good a suggestion of the meaning as could be had. ' (at 639)
Case: Salerno v National Crime Authority (1997) 75 FCR 133
Outcome: cited
There is no doubt that a decision to issue a search warrant is a decision under an enactment in this case, the Crimes Act and accordingly reviewable under the ADJR Act: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 at 152-153, Salerno v National Crime Authority (1997) 75 FCR 133, Harts Australia Ltd v The Commissioner, Australian Federal Police [2001] FCA 175. In my view however, the application of the applicant concerning the decision of the second respondent to issue the search warrant is an application 'in relation to a related criminal justice process decision ' for the reasons I discussed earlier in the context of the first respondent. Accordingly, the jurisdiction of the Federal Court is excluded under s 9A ADJR Act in respect of the Application for an Order of Review of the decision of the second respondent to issue the warrant.
Case: Wilhelm v McKay [2005] FCA 792
Outcome: cited
As I noted earlier in this judgment, a reviewable decision under the ADJR Act is, inter alia , a decision of an administrative character made under an enactment. There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. Authority also indicates that: &#8226; A decision to seize material in the course of execution of a search warrant is reviewable under the ADJR Act: Drummond J in Harts Australia Limited v Commissioner, Australian Federal Police [2001] FCA 175 at [22] . &#8226; A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). &#8226; Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman .
Case: Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303
Outcome: cited
Earlier in this judgment I considered the meaning of 'decision' and 'in connection with' in the context of s 9A(4)(a). The differences between 'in connection with' and 'in relation to' are, as a general proposition, minimal (cf French J in Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303). Indeed, related criminal justice process decisions are defined by the fact that there is a 'connection' between a decision and some other event, such as the issue of a warrant. 'In relation to' was explained by McHugh J in O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 in the following terms: 'The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. ' (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (Cth) [2002] FCAFC 226 at [68] )
Case: A v Minister for Immigration and Multicultural Affairs [1999] FCA 227
Outcome: cited
I accept that Tribunals, and particularly lay Tribunals, sometimes assert that there is 'no evidence' on an issue when they mean that, although there is some evidence on the issue, they do not regard the evidence as sufficient to support a particular finding (see, for example A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [23] - [27] and Wickramasinghe v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 30 at [18] ). In every case the meaning intended to be conveyed by the Tribunal is to be determined by reference to the language used by the Tribunal understood in the context provided by the Tribunal's reasons for decision as a whole. In this case, having twice asserted that there was 'no evidence' of a particular character, the Tribunal went on to state that the appellant had not provided 'any information which would support [his] claim other than his own speculative assertion' . I conclude that the Tribunal's language, understood in the context provided by its written reasons as a whole, suggests that the Tribunal intended to convey that there was no evidence at all on the two matters identified by it.
Case: Wickramasinghe v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 30 
Outcome: cited
I accept that Tribunals, and particularly lay Tribunals, sometimes assert that there is 'no evidence' on an issue when they mean that, although there is some evidence on the issue, they do not regard the evidence as sufficient to support a particular finding (see, for example A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [23] - [27] and Wickramasinghe v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 30 at [18] ). In every case the meaning intended to be conveyed by the Tribunal is to be determined by reference to the language used by the Tribunal understood in the context provided by the Tribunal's reasons for decision as a whole. In this case, having twice asserted that there was 'no evidence' of a particular character, the Tribunal went on to state that the appellant had not provided 'any information which would support [his] claim other than his own speculative assertion' . I conclude that the Tribunal's language, understood in the context provided by its written reasons as a whole, suggests that the Tribunal intended to convey that there was no evidence at all on the two matters identified by it.
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: cited
I accept the submission of the first respondent that the above submission is inconsistent with the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. While the full import of that decision awaits clarification, the majority judgment makes clear that s 424A has a more limited operation than was previously assumed. It had been argued before the High Court that passages from the appellant's statutory declaration that the Tribunal regarded as inconsistent with his evidence at his hearing should have been the subject of a notice under s 424A of the Act because those inconsistencies were the reason, or part of the reason, for the Tribunal's decision to affirm the decision under review. 24 The majority judgment in SZBYR at 615-617 at [17]-[21] makes clear that, in the circumstances of that case, the relevant parts of the statutory declaration of the appellant in support of his claims to be entitled to a protection visa were not 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review' . The circumstances of SZBYR are not in this respect distinguishable from the circumstances of this case. I therefore reject the submission of the appellant that the Tribunal was obliged to comply with s 424A of the Act with respect to the information available to it concerning the content of his protection visa application. It is therefore unnecessary for this Court to determine whether the Federal Magistrate erred in finding that the decision of the Tribunal was not based on an inconsistency between what the appellant said in his visa application and what he said to the Tribunal. 25 The second ground of appeal also fails. 26 The appeal will be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 18 September 2007 Counsel for the Appellant: Mr R Turner Solicitor for the Appellant: Parish Patience Immigration Counsel for the Respondent: Mr D Goodwin Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 1 August 2007 Date of Judgment: 18 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1461.html
Case: Habib v Director-General of Security [2009] FCAFC 48 , 175 FCR 411
Outcome: applied
the absence of such an opportunity to respond to the additional concerns of the Tribunal, it is nevertheless considered that there has been no denial of procedural fairness such as to warrant the Tribunal decision being set aside. The Applicant was clearly on notice that the Tribunal had considerable reservation in respect to letters such as the ones upon which he sought to rely. The opportunity was extended to him to advance such submissions in respect to this more generally expressed concern in such manner as he saw fit and to advance such further evidence as he considered appropriate. The additional factors relied upon by the Tribunal were but further factors in support of a conclusion that letters such as the June 2008 letter were to be given little (if any) weight. A necessity to expressly raise with the Applicant the more specific concerns of the Tribunal may have arisen had the Tribunal sought to rely on those concerns for a purpose other than supporting its conclusion as to the weight to be given to the letter. Albeit arising in the context of an appeal from a decision of the Administrative Appeals Tribunal, such was the concern of the Full Court in Habib v Director-General of Security [2009] FCAFC 48 at [71] , [2009] FCAFC 48 ; 175 FCR 411 at 429 per Black CJ, Ryan and Lander JJ. It is not incumbent upon the Tribunal to bring to the attention of a party before it each and every particular concern it may have in respect to a particular document such as the June 2008 letter. To do so would be to come perilously close to, if not to trespass into, a requirement that the Tribunal expose its tentative reasoning process for scrutiny prior to decision. The opportunity guaranteed by s 425 of the 1958 Act " to give evidence and present arguments ", like the content of the rules of natural justice ( Habib, supra , at [77], 175 FCR at 430 per Black CJ, Ryan and Lander JJ) is to be interpreted and applied in a " practical " manner. Although reservation is expressed as to the manner in which the learned Magistrate reached her conclusion, it is not considered that the Tribunal denied the Applicant procedural fairness. Concurrence is expressed with the conclusion as ultimately reached by the Federal Magistrate. It follows that the Application for an extension of time should be granted but that the Appeal should be dismissed. There is no reason why costs should not follow the event.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: applied
extension of time may be granted where there are " special reasons ": O 52 r 15(2). When considering this provision in Jess v Scott (1986) 12 FCR 187 , Lockhart, Sheppard and Burchett JJ observed at 195: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.