mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 , 201 ALR 437
Outcome: followed
Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an " inquisitorial process ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8. Allsop J there observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 30 3.
Case: Re JRL ; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: followed
A discrete submission made orally by the Appellant at the hearing of the appeal was that the provision of the interpreter in fact provided was made " intentionally " so as to deprive the Appellant of an opportunity to be heard. The submission was understood to be that the Tribunal was biased. It was not a submission advanced before the Federal Magistrates Court. That submission is, however, without substance and is rejected. There is no basis upon which a " fair-minded and informed person might reasonably apprehend that the [Tribunal] might not bring or have brought an impartial mind to bear on the decision " by reason of the interpreter in fact provided to the now Appellant: cf NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] , [2004] FCAFC 328 ; 214 ALR 264 at 268. A reasonable apprehension of bias, it has been said, must be " firmly established ": Re JRL ; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. Nothing in the present proceedings even approaches such a basis being established.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: followed
Nor is there any obligation imposed upon the Tribunal to inform an applicant as to whether it proposes to accept or reject individual claims or pieces of evidence and, in effect, inform an applicant as to its " mental processes before [it] reaches a final decision ": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48] , [2006] HCA 63 ; 228 CLR 152 at 166. 14 The first of the three contentions is thus rejected.
Case: SZEEU v Minister for Immigration &amp; Citizenship [2008] FCA 269
Outcome: considered
There is no unqualified duty imposed upon the Tribunal to make all such inquiries or to undertake all such investigations as a party may wish to be undertaken: cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZEEU v Minister for Immigration &amp; Citizenship [2008] FCA 269 at [44] .
Case: SZGYM v Minister for Immigration &amp; Citizenship [2007] FCA 1923
Outcome: followed
Other decisions have also recognised that a meaningful opportunity to give evidence and present arguments, in the case of a person who is not fluent in the English language, will only be afforded if an interpreter is present and it is evident that, subject to reasonably accurate interpretation, that which an applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to an applicant is fairly interpreted: SZGYM v Minister for Immigration &amp; Citizenship [2007] FCA 1923 at [27] . An inadequate translation service may deprive a party of an effective opportunity to present his case where the standard of interpretation at the Tribunal hearing is so inadequate that the appellant is effectively prevented from giving evidence at the Tribunal: W284 v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1788 ; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 , 122 FCR 322 ; Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230.
Case: SZJZS v Minister for Immigration &amp; Citizenship [2007] FMCA 2003
Outcome: cited
On 24 November 2006 the Tribunal affirmed the delegate's decision and on 4 December 2007 the Federal Magistrates Court dismissed an application seeking to review the decision of the Tribunal: SZJZS v Minister for Immigration &amp; Citizenship [2007] FMCA 2003. 4 The Appellant now appeals to this Court against the decision of the Federal Magistrate. He appeared before the Court unrepresented, albeit with the assistance of an interpreter. Previously filed on his behalf were written submissions. 5 The two Grounds of Appeal as set forth in the Notice of Appeal are expressed as follows (without alteration): GROUNDS. 1. The Honorable Federal Magistrate erred in considering that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error not following the obligation u/s 424A of the Migration Act 1958 ( the Act). The Federal Magistrate wrongly agreed witht the written submissions provided by Ms wong in paragraph 16. Because the Court gave an opportunity to applicant to respond the documents issue (21) but the Tribunal did not give any opprtunity to the applicant to respond any issues. Absence of Tribunal hearing transcript can not be the reason to reject the genuine claim (23) 2. The Honorable Federal Magistrate erred in finding that the Tribunal denied the applicant natural justice when the Tribunal did not arrange 'Pakistani Pushto Language Interprator' and this issue was rejected only that there was no transcript of the Tribunal hearing before the Court and the Court wrongly agreed in paragraph 21 with the respondednt.
Case: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 , 122 FCR 322
Outcome: followed
Other decisions have also recognised that a meaningful opportunity to give evidence and present arguments, in the case of a person who is not fluent in the English language, will only be afforded if an interpreter is present and it is evident that, subject to reasonably accurate interpretation, that which an applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to an applicant is fairly interpreted: SZGYM v Minister for Immigration &amp; Citizenship [2007] FCA 1923 at [27] . An inadequate translation service may deprive a party of an effective opportunity to present his case where the standard of interpretation at the Tribunal hearing is so inadequate that the appellant is effectively prevented from giving evidence at the Tribunal: W284 v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1788 ; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 , 122 FCR 322 ; Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230.
Case: VAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 117
Outcome: followed
Even if the Appellant could overcome the initial difficulty encountered by reason of an interpreter in fact being made available, and even if there is a relevant difference as between an Afghani and a Pakistani Pushto interpreter, he nevertheless faces two further difficulties, namely: (i) an absence of any indication that any deficiency in the translation facilities in fact provided before the Tribunal deprived him of an opportunity to present his case; and (ii) the fact that any deficiency in the provision of translation facilities in the Pushto language does not address the Appellant's ability to speak English, as noted by the Tribunal. The onus in judicial review proceedings remains upon an applicant to make out the ground of review upon which he wishes to proceed: cf VAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ. That onus was not discharged before the Federal Magistrates Court in the present proceedings and no appellable error is exposed as to the manner in which the Federal Magistrate proceeded.
Case: W284 v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1788
Outcome: followed
Other decisions have also recognised that a meaningful opportunity to give evidence and present arguments, in the case of a person who is not fluent in the English language, will only be afforded if an interpreter is present and it is evident that, subject to reasonably accurate interpretation, that which an applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to an applicant is fairly interpreted: SZGYM v Minister for Immigration &amp; Citizenship [2007] FCA 1923 at [27] . An inadequate translation service may deprive a party of an effective opportunity to present his case where the standard of interpretation at the Tribunal hearing is so inadequate that the appellant is effectively prevented from giving evidence at the Tribunal: W284 v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1788 ; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 , 122 FCR 322 ; Appellant P119/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 230.
Case: Commissioner of Taxation v Rowe (1995) 60 FCR 99
Outcome: referred to
If legal expenses are properly treated as having been incurred by a taxpayer in defending the manner of his performance of his duties, the expenses will be deductible. If a liability is incurred, or a claim is encountered, because of the very act of performing the work by which a taxpayer earns assessable income, the expense will be deductible. If a proceeding in respect of which legal expenses are incurred arises from activities by which a taxpayer earns his income or the mode of his performance of a particular task carried out in the course of earning his income, the legal expenses incurred in relation to that proceeding will be deductible. That is to say, if the cause or the purpose of a taxpayer's incurring of legal expenses is his assertion that he had faithfully performed the duties by which he had earned assessable income, the expenditure will be deductible ( Commissioner of Taxation v Rowe (1995) 60 FCR 99 at 113 (' Rowe '). 34 If incurring costs can be shown to contribute to the success of an employee in defending himself from dismissal from his employment and costs are incurred to preserve the employee's entitlement to receive, in return for his services, assessable income, the costs will be deductible ( Rowe at 115-116). If legal expenses are incurred by an employee in defending himself from dismissal, the expenditure will be incurred on revenue account and not capital account ( Rowe at 118). Whether or not legal expenses constitute an outgoing of a capital nature or an outgoing on account of revenue depends upon the cause or the purpose of incurring the expense. It is therefore necessary to consider the object in view when the legal proceedings were undertaken or the situation that impelled a taxpayer to undertake the proceedings ( Hallstroms Pty Limited v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 at 647).
Case: Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634
Outcome: referred to
If incurring costs can be shown to contribute to the success of an employee in defending himself from dismissal from his employment and costs are incurred to preserve the employee's entitlement to receive, in return for his services, assessable income, the costs will be deductible ( Rowe at 115-116). If legal expenses are incurred by an employee in defending himself from dismissal, the expenditure will be incurred on revenue account and not capital account ( Rowe at 118). Whether or not legal expenses constitute an outgoing of a capital nature or an outgoing on account of revenue depends upon the cause or the purpose of incurring the expense. It is therefore necessary to consider the object in view when the legal proceedings were undertaken or the situation that impelled a taxpayer to undertake the proceedings ( Hallstroms Pty Limited v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 at 647).
Case: Herald and Weekly Times Limited v Federal Commissioner of Taxation [1932] HCA 56 ; (1932) 48 CLR 113
Outcome: referred to
If that which produces assessable income for a taxpayer is what exposes the taxpayer to a liability or claim that is discharged by expenditure, that expenditure will be deductible. Even if, when the expenditure is actually paid by a taxpayer, the taxpayer was actuated in paying the expenditure, not by a desire to produce income, but by the necessity of satisfying a liability or claim to which the taxpayer had become subject in deriving assessable income, the expenditure will be still deductible. The question of whether money is expended in and for the production of assessable income is not to be determined by considering only the immediate reason for making the payment, but must also be determined by having regard to the purpose for which the liability or claim that gives rise to the expenditure was incurred (see Herald and Weekly Times Limited v Federal Commissioner of Taxation [1932] HCA 56 ; (1932) 48 CLR 113 at 118).
Case: IEL Finance Limited v Commissioner of Taxation [2006] FCA 267
Outcome: referred to
The Commissioner accepts that an issue estoppel can arise out of a judgment or order given on an appeal from an objection decision in relation to a particular year of income, which can be pleaded in a subsequent appeal in relation to a different year of income. Nevertheless, the prerequisites for the existence of an issue estoppel must be satisfied. That is to say, it must be demonstrated that the issue in respect of which an estoppel is raised is the same issue as was determined or, by necessary implication, must have been determined as between the parties in order for the earlier order or judgment to have been made or given. Thus, it must be established that the issue raised in a subsequent proceeding in respect of which an estoppel is pleaded was an issue the determination of which was an essential and fundamental step in leading to the judgment or order in the earlier proceeding. The issue might be one of fact or law or of mixed fact and law but it must be the same issue (see generally IEL Finance Limited v Commissioner of Taxation [2006] FCA 267). 68 Clearly enough, there is some connection between the advice given by Mr Jackson QC and the advice and appearances of Mr Gageler SC and Mr Roberts SC in relation to the Third Charges, in so far as they were concerned with the litigation in the Federal Court and with an application for special leave to appeal from the orders of the Full Court dismissing the appeal from Einfeld J. Notwithstanding the references to the Second Charges in the Statement of Facts, Issues and Contentions that are highlighted in the extracts set out above and the references to the First Charges and the Second Charges in the affidavit of 22 September 2003, the product of the telephonic interceptions does not appear to have been raised in conjunction with the Second Charges. The material indicates that Mr Jackson's advice was sought only in relation to the application for special leave to appeal to the High Court from the decision of the Full Court, which related only to the Third Charges. Insofar as the Commissioner and Taxpayer referred to the Second Charges in the earlier proceeding, it is clear the reference was to use that may have been made by Customs of the product of the interceptions in considering the Second Charges. That may have been a misapprehension. 69 The fee of $6,000 paid by the Taxpayer to Mr Jackson QC was for an opinion on the proposed appeal to the High Court. That appeal related to a challenge to the use, in connection with the Third Charges, of the product of telephonic interceptions made by the Australian Federal Police. By making the order of 5 December 2003, albeit by consent, Finn J must be taken to have determined that those fees were allowable as a deduction from the assessable income of the Taxpayer for the year ended 30 June 2001.
Case: NABE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No. 2) [2004] FCAFC 263 ; (2004) 219 ALR 27
Outcome: referred to
else may be said about the Tribunal's reliance on the Department of Foreign Affairs and Trading ('DFAT') ICI and its failure to even refer to the more recent US Department of State information, let alone rely on it, one thing is clear: It does not, in my view, amount to jurisdictional error. At most, any error that may be reflected in the reasons for decision of the Tribunal that derives from the Tribunal's acceptance of the accuracy of the DFAT ICI is an error within the Tribunal's jurisdiction: See SZDLR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 773 ; (2005) 144 FCR 368 at [44] per Branson J; see, too, NABE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No. 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [52] [54].
Case: SZDLR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 773 ; (2005) 144 FCR 368
Outcome: referred to
else may be said about the Tribunal's reliance on the Department of Foreign Affairs and Trading ('DFAT') ICI and its failure to even refer to the more recent US Department of State information, let alone rely on it, one thing is clear: It does not, in my view, amount to jurisdictional error. At most, any error that may be reflected in the reasons for decision of the Tribunal that derives from the Tribunal's acceptance of the accuracy of the DFAT ICI is an error within the Tribunal's jurisdiction: See SZDLR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 773 ; (2005) 144 FCR 368 at [44] per Branson J; see, too, NABE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No. 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [52] [54].
Case: Council of the City of Sydney v Goldspar Australia Pty Limited [2006] FCA 472
Outcome: related
On 3 May 2006 I delivered what was called Reasons for Judgment. The only order made was that the proceeding stand over to a date to be fixed ( Council of the City of Sydney v Goldspar Australia Pty Limited [2006] FCA 472). The last paragraph of the reasons was as follows: 'It follows that Goldspar is entitled to damages for the repudiation by the Council of its obligations under the contract. During the course of submissions, it was agreed that the quantum of damages would not be dealt with before I had decided issues of liability. I have now done so and the matter will stand over to enable the hearing on damages to be scheduled and for the parties to raise any other issues arising out of these reasons.' 2 The matter was stood over to 24 May 2006. The following exchange then took place. '... MR CONDON: Your Honour, I'm not certain your Honour made a formal order under order 29, separating the issue. HIS HONOUR: No, I didn't. I wasn't asked to. MR CONDON: No, that wasn't said critically, I was just trying to address my own recollection, but if one has regard to order 52 rule 10(2A)(b), we have seven days if we wish to seek leave to appeal from your Honour's judgment. You Honour can extend time --- HIS HONOUR: I don't think you can, Mr Condon. I mean you couldn't appeal against the order that the matter stand over. MR CONDON: Yes, I think that's probably right, your Honour. HIS HONOUR: If you wish to contend that the matter should be put in that state --- MR CONDON: Yes, I'm not sure if I want to, your Honour. HIS HONOUR: No. I think it's a matter of substance, but you can take it that well, I don't suppose I can give any assurances, but I do not believe that time will be running at the moment. MR CONDON: Thank you, your Honour. HIS HONOUR: If you, or if your side wishes to put the matter in a position where it can appeal then you'll need to persuade me that that's the right thing to do. I must say at the moment I would require some persuasion about that. MR CONDON: I understand your Honour's reasons why. HIS HONOUR: I don't have a closed mind. ...' Discussion then ensued about the preparation of the matter for hearing on the issue of damages. 3 Prior to 24 May, the cross-respondent, the Council of the City of Sydney (the Council) (for whom Mr Condon appeared on 3 May 2006) sought leave to appeal in the appellate jurisdiction of the Court. That motion has not yet been dealt with.
Case: Australian Building Construction Employees and Builders' Labourers' Federation v Employment Advocate [2001] FCA 1443 ; (2001) 114 FCR 22
Outcome: cited
Whilst it may be technically possible to make the order after the event, in this case it would be wrong to do so against the opposition of the moving party. It is too late to make or change the rules at this stage. A useful summary of the position appears in the judgment of the Full Court in Australian Building Construction Employees and Builders' Labourers' Federation v Employment Advocate [2001] FCA 1443 ; (2001) 114 FCR 22 at [5] [7]. I did not, and do not, intend to lose control of this cross-claim. I wish to complete disposition of it to final judgment as soon as reasonably possible. The proceeding as a whole has been fragmented more than enough already. 7 Many of the arguments advanced by counsel for the parties were, in truth, directed to the question as to whether or not there should be an interlocutory appeal. That issue would have arisen if I had made dispositive orders or declarations. It is a false issue so far as I am concerned. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Gyles. Associate: Dated: 26 May 2006 Counsel for the Cross-claimant: Mr JV Nicholas SC; Mr DAC Robertson Solicitor for the Cross-claimant: Osbornes Lawyers Counsel for the Cross-respondent: Mr M Condon Solicitor for the Cross-respondent: PricewaterhouseCoopers Legal Dates of Hearing: 24 May 2006 Date of Ruling: 26 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/641.html