mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Polites v Commonwealth [1945] HCA 3 ; (1945) 70 CLR 60
Outcome: applied
The proper use of unincorporated treaties in the interpretation of statutes is limited. The Act is not one which gives effect to the Convention. Nevertheless, Parliament is presumed to have intended to legislate in conformity with Australia's international obligations: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. That presumption is, however, rebutted by unambiguous language: Polites v Commonwealth [1945] HCA 3 ; (1945) 70 CLR 60. Although ambiguity in a statute may be resolved in favour of the interpretation consistent with those obligations, no relevant ambiguity was identified by the applicant in the present case. Nor is any ambiguity discernible. I refer again to the decision of the High Court in Al-Kateb [2004] HCA 37 ; 219 CLR 562 and especially at 642 per Hayne J and at 661 per Callinan J. It is not open on the language of the Act to interpret the power to remove an unlawful non-citizen as subject to the provisions of the Convention, least of all unincorporated provisions.
Case: MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 ; (2008) 166 FCR 483
Outcome: applied
was the existence of the report and the information in it about the alternative motive for coming to Australia that was of "dispositive relevance" to the Convention claims advanced by the appellant before the Tribunal: MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 ; (2008) 166 FCR 483 at [27] . Particulars of the information and the reason why it may be relevant were given to the appellant in accordance with s 424A(1)(b). The fact that the information may have been provided in the first instance by the appellant to the tour operator was of no dispositive relevance and was not required to be supplied to the appellant. To the extent that it is permissible to refer to the Tribunal's reasons to determine whether the Tribunal considered the source of the information to be a reason for affirming the decision, the reasons of the Tribunal, in particular at [87], support the conclusion I have reached.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609
Outcome: applied
proper construction of s 424A(1) was referred to by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] ff and by a Full Court in SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] . It has also been dealt with in subsequent authorities. I referred to them in my decision in SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121 at [13] [19]. I accept of course that, as the High Court said in SZBYR at [17], the question is to be determined in advance of, and independently from, the Tribunal's reasoning. But whether one looks at the transcript of the hearing, or the Tribunal's reasons, it is plain, in my opinion, that the approach taken by the Federal Magistrate was correct. As his Honour said at [20], the information which the Tribunal considered would be a reason for affirming the decision was that a report had been received which indicated that there was a motive for the appellant wishing to come to Australia different from that which formed the basis of his application for a protection visa, and the existence of that report cast doubt upon the credibility of the appellant. This is clear from what the Tribunal put to the appellant during the oral hearing as revealed in the passage from the transcript set out above. Moreover, as the Federal Magistrate went on to say at [20], the existence of the report and the reason why it may be relevant to the decision making process was clearly explained in the s 424A letter. In my opinion, this approach is inconsistent with the proper construction of s 424A(1)(a) and the authorities which have construed it. In my view, the effect of what the High Court said in SZBYR at [17], and, in particular, of what the Full Court said in SZKLG at [33] is that the word "considers" in s 424(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case.
Case: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578
Outcome: referred to
proper construction of s 424A(1) was referred to by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] ff and by a Full Court in SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] . It has also been dealt with in subsequent authorities. I referred to them in my decision in SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121 at [13] [19]. In my opinion, this approach is inconsistent with the proper construction of s 424A(1)(a) and the authorities which have construed it. In my view, the effect of what the High Court said in SZBYR at [17], and, in particular, of what the Full Court said in SZKLG at [33] is that the word "considers" in s 424(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case.
Case: SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121
Outcome: referred to
proper construction of s 424A(1) was referred to by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] ff and by a Full Court in SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] . It has also been dealt with in subsequent authorities. I referred to them in my decision in SZMPT v Minister for Immigration and Citizenship (2009) 107 ALD 121 at [13] [19]. There is some tension in the authorities as to what use, if any, can be made of the Tribunal's written reasons in determining whether s 424A(1)(a) was enlivened. In SZMPT at [16] [18], I expressed the view that the Tribunal's reasons are not the starting point, but that it may be appropriate to refer to them to determine whether the Tribunal considered the information to be a reason for affirming the decision under review.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
The second and third grounds seem to me both to raise what the appellant has called " Wednesbury unreasonableness", which is also referred to by the appellant's other description, "manifest unreasonableness". The reference to Wednesbury unreasonableness is a reference to the judgment of Lord Greene MR in the English Court of Appeal in Associated Provincial Picture Houses Limited v The Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223. The test promulgated in that case, as restated in ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 576), is whether a purported exercise of administrative power "is so unreasonable that no reasonable person could have so exercised the power". I will assume that such a purported exercise of power is no exercise of the power because it involves jurisdictional error. The appellant relies upon this ground, which undoubtedly raises a question of law, to challenge the two ultimate findings of fact made by the Tribunal. They are: 1. that the appellant could safely relocate within India to a place where there would be no well-founded fear of persecution; and 2. that it was reasonable in all the circumstances to expect the appellant to do so.
Case: Australian Securities &amp; Investments Commission; In the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433
Outcome: cited
29 March 2006 the Australian Securities and Investments Commission (ASIC) filed an application in the Court seeking orders under s 1323 of the Corporations Act 2001 (Cth) against companies who were members of, or associated with, the Westpoint Group. Orders were also sought against officers and former officers of those companies. On 20 April 2006 receivers were appointed to the property of each of the defendants save for the seventh defendant, Bowesco Pty Ltd (Bowesco), which already had a private receivership in place. In the case of Bowesco freezing orders were made in relation to its property: Australian Securities &amp; Investments Commission; In the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. It is not necessary now to recite the matters which led to the making of those orders. They are set out in the reasons for judgment. Nor is it necessary to recite the convoluted history of the interlocutory processes associated with these proceedings, which are in themselves interlocutory in substance, albeit not in form. For the most part that history appears from a series of judgments delivered since 20 April 2006. On 7 August 2006 ex parte orders were made joining Rold Corporation Pty Ltd (Rold) as the eleventh defendant. Interim asset preservation orders were made in relation to the property of Rold and remain in place until today.
Case: Australian Securities and Investments Commission v Wiggins (1998) 90 FCR 314
Outcome: followed
a reading of s 1323 demonstrates, it does not provide for a general freezing order of the kind sought by ASIC as its primary relief. Even the interim orders for which s 1323(3) provides are limited to orders of the kind applied for under subs (1). The absence of power under s 1323 to make mareva type orders against "the relevant person" in respect of property held by that person was noted by Finkelstein J in Australian Securities and Investments Commission v Wiggins (1998) 90 FCR 314 at 319. That is not to say that a more general mareva type order may not be made on an interlocutory basis pending the determination of a substantive application under s 1323. Such an order, as an interlocutory order, would be authorised by s 23. Finkelstein J was not in doubt that he had the power to make an order of the kind sought by ASIC "but it would not be an order in pursuance of the powers conferred by s 1323" (at 320). Counsel for ASIC acknowledged the absence of power, under s 1323, to grant a mareva type order in relation to the assets of a company or individual. He relied upon s 23 of the Federal Court Act as the primary source of power for the orders which ASIC seeks. In my opinion, however, this is not an appropriate application of s 23. It is not open to ASIC to file an application for freezing orders in proceedings under s 1323 then effectively ignore s 1323 and say it is relying upon s 23 of the Federal Court Act. The question about the way in which s 23 could be invoked in an application under s 1323 was raised by the Court in argument. Subsequently, both parties were given time to file written submissions on the point which they have done and which have been considered.
Case: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448
Outcome: cited
jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.
Case: R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595
Outcome: cited
jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.
Case: R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15
Outcome: cited
jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.
Case: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457
Outcome: cited
jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.
Case: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Outcome: cited
jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.