mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
In any event, the Tribunal did consider independent information which indicated that, while there was some tension between black South Africans and foreigners in some areas of South Africa, there was no mention of events involving attacks on South African citizens of Indian ethnicity. The Tribunal's reliance on that material was a matter for the Tribunal and it was under no obligation to search for further country information to support the appellant's claims (see Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561, SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] , SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [16] ). 30 The appellant has failed to demonstrate error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal. He has not made out any of the matters set out in his grounds of appeal. Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 19 November 2008 The appellant was self represented Counsel for the first respondent: Ms A Mitchelmore Solicitor for the first respondent: Sparke Helmore Date of Hearing: 5 November 2008 Date of Judgment: 5 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1743.html
Case: SZMEZ v Minister for Immigration [2008] FMCA 1097
Outcome: considered
The appellant was born in India but is a citizen of South Africa. He arrived in Australia on 8 September 2007 and on 19 October 2007 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. The application was refused by a delegate of the Minister. The delegate's decision to refuse the protection visa was affirmed by the Refugee Review Tribunal ('the Tribunal'). An application for review of the decision of the Tribunal was dismissed by Scarlett FM ( SZMEZ v Minister for Immigration [2008] FMCA 1097). 2 The appellant appeals from the decision of Scarlett FM. 3 The appellant applied for an adjournment of this appeal for some months. He notified the first respondent's legal representatives of the application for adjournment on the morning of the hearing of the appeal. The application for adjournment was opposed.
Case: Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531
Outcome: cited
The advancement of religion is a charitable purpose. Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 583 set out the legal definition of charity: "'Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads." The High Court has recently confirmed that, unless a contrary intention is apparent, the use of the word "charitable" in a statute is a reference to the technical legal meaning as defined by Lord Macnaghten in the above passage: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1 at [18] fn 6 per Gleeson CJ, Heydon and Crennan JJ. No contrary intention is apparent in the Act.
Case: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1
Outcome: applied
The advancement of religion is a charitable purpose. Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 583 set out the legal definition of charity: "'Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads." The High Court has recently confirmed that, unless a contrary intention is apparent, the use of the word "charitable" in a statute is a reference to the technical legal meaning as defined by Lord Macnaghten in the above passage: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1 at [18] fn 6 per Gleeson CJ, Heydon and Crennan JJ. No contrary intention is apparent in the Act.
Case: Baptist Union of Ireland (Northern) Corporation Ltd v Commissioners of Inland Revenue (1945) 26 TC 335
Outcome: cited
There is no doubt that the advancement of religion includes missionary work: Baptist Union of Ireland (Northern) Corporation Ltd v Commissioners of Inland Revenue (1945) 26 TC 335 (Court of Kings Bench of Northern Ireland). This is so whether that work is conducted within Australia or overseas. However, an organisation that does missionary work will not qualify as a charitable institution if its purpose is not exclusively charitable ( Attorney-General (NSW) v Adams [1908] HCA 51 ; (1908) 7 CLR 100 at 113-114) unless the non-charitable purposes are merely incidental to the charitable purposes: Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1 ; [1953] AC 380 at 395-396 per Lord Normand, at 402 per Lord Reid, at 405 per Lord Cohen.
Case: Attorney-General (NSW) v Adams [1908] HCA 51 ; (1908) 7 CLR 100
Outcome: cited
There is no doubt that the advancement of religion includes missionary work: Baptist Union of Ireland (Northern) Corporation Ltd v Commissioners of Inland Revenue (1945) 26 TC 335 (Court of Kings Bench of Northern Ireland). This is so whether that work is conducted within Australia or overseas. However, an organisation that does missionary work will not qualify as a charitable institution if its purpose is not exclusively charitable ( Attorney-General (NSW) v Adams [1908] HCA 51 ; (1908) 7 CLR 100 at 113-114) unless the non-charitable purposes are merely incidental to the charitable purposes: Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1 ; [1953] AC 380 at 395-396 per Lord Normand, at 402 per Lord Reid, at 405 per Lord Cohen.
Case: Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1 ; [1953] AC 380
Outcome: cited
There is no doubt that the advancement of religion includes missionary work: Baptist Union of Ireland (Northern) Corporation Ltd v Commissioners of Inland Revenue (1945) 26 TC 335 (Court of Kings Bench of Northern Ireland). This is so whether that work is conducted within Australia or overseas. However, an organisation that does missionary work will not qualify as a charitable institution if its purpose is not exclusively charitable ( Attorney-General (NSW) v Adams [1908] HCA 51 ; (1908) 7 CLR 100 at 113-114) unless the non-charitable purposes are merely incidental to the charitable purposes: Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1 ; [1953] AC 380 at 395-396 per Lord Normand, at 402 per Lord Reid, at 405 per Lord Cohen.
Case: Attorney-General v Ross [1986] 1 WLR 252
Outcome: cited
The starting point in determining the essential object of an institution is its constitution or articles of association. However, this will not always be determinative since "[t]he skill of Chancery draftsmen is well able to produce a constitution of charitable flavour intended to allow the pursuit of aims of a non-charitable or dubiously charitable flavour": Attorney-General v Ross [1986] 1 WLR 252 at 263 per Scott J. Similarly, the constitution of a legitimate charity may be drafted in such a way as to obscure that legitimacy, whether through the inexperience of the drafter, the mistaken belief that the organisation's charitable nature will never be questioned, or otherwise. Where it is unclear from the listed objects of an organisation what its main purpose is, or where the evidence shows that the listed objects do not reflect the actual purpose of the organisation, it is appropriate to look to the activities of the organisation together with the expressed objects. In my view, this is not a case where the listed objects leave it unclear what is the main purpose of the organisation. Nor is there evidence that the stated objects do not reflect the actual purpose of Word. The first six objects in paragraph (a) of the objects (set out above at [9]) are clearly related to Word's evangelising activities. As for the remaining objects, I am satisfied, as was the Tribunal, that their comprehensive nature is more likely to reflect a degree of caution on the part of the drafter to ensure that no necessary or desirable act would be prohibited because of an unintended omission from the list. 29 The Tribunal's finding in respect of the period from 1986 or 1987 to the establishment of Bethel Funerals in 1996 was as follows: "Between 1986 or 1987 and 1996, the sole activity of the applicant was the generation of income from interest earned on deposits from individuals seeking to support those fund raising activities. Its constituent documents prohibited distribution to members of the company and the income generated was applied solely for the benefits of [Wycliffe] as the primary recipient with small contributions to other similar religious organisations. It pursued those objectives solely in Australia and, as such, satisfied the requirements of Item 1.1 of s 50-5 and s 50-50(a) of the Act and was entitled to be endorsed as exempt from income tax for that period as an institution for the advancement of religion." 30 This finding raises three questions of law which the Commissioner says, for the purposes of the period from 2002, were answered erroneously by the Tribunal. The first is the Commissioner's submission that there was insufficient evidence for the Tribunal to conclude that the payments made by Word to Wycliffe and other organisations were used by them for charitable purposes. No such conclusion expressly appears in the Tribunal's reasons but I agree with the Commissioner's submission that that is the only basis on which the Tribunal could have concluded that Word's activities were charitable.
Case: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Outcome: applied
In Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598, Fox, Deane and Morling JJ said, at 601: "An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to an error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based." Clearly, in this case there was evidence that Wycliffe and the other organisations used the money received from Word for charitable purposes. More importantly, there was also evidence that Word intended and believed that Wycliffe and the other organisations would use the money for charitable purposes. It follows that no error of law has been made out.
Case: Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73
Outcome: considered
The second question of law that arises from the Tribunal's findings in respect of this period is whether the generation of income from interest earned on deposits is a sufficiently religious activity to establish Word as a charity. Word relied on a number of cases in support of its contention that fund-raising may be part of a charitable purpose. With one exception, I have not found these authorities to be of great assistance. The exception is Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73. In that case, the Council was a not for profit organisation that published reports of judicial decisions. It was entitled to and did charge for its services but was prohibited from distributing profits to its members. The Commissioners of Inland Revenue argued that the purpose of the Council was to carry on the trade of publishers and sellers of law reports and that this was not a charitable purpose. They said that no legal distinction could be drawn between the Council and a similar publisher that profited from its publishing and selling law reports. The Court of Appeal rejected this argument. Russell LJ said, at 86: "The fact that the association carries on a trade or business is admittedly not inconsistent with a charitable character in its objects. The difference between the two cases is in my view a vital distinction. The element of unselfishness is well recognised as an aspect of charity, and an important one. Suppose on the one hand a company which publishes the Bible for the profit of its directors and shareholders: plainly the company would not be established for charitable purposes. But suppose an association or company which is non-profit-making, whose members or directors are forbidden to benefit from its activities, and whose object is to publish the Bible; equally plainly it would seem to me that the main object of the association or company would be charitable the advancement or promotion of religion." 34 In the same case, Sachs LJ said at 90 that: "it is clear that the mere fact that charges on a commercial scale are made for services rendered by an institution does not of itself bar that institution from being held to be charitable so long, at any rate, as all the profits must be retained for its purposes and none can enure to the benefit of its individual members". 50 It is clear from the passages from the Incorporated Council of Law Reporting case and the Scottish Burial case that the key to determining charitable status is motive. An investigation of motive cannot be conducted without considering the ultimate object of an organisation's activities. It follows that Word is right to argue that Wycliffe's activities are relevant to whether Word is entitled to charitable status. I also accept the corollary, namely that the location of Wycliffe's activities is also relevant.
Case: Ryde Municipal Council v Macquarie University [1978] HCA 58 ; (1978) 139 CLR 633
Outcome: cited
Some assistance may be found in the rating cases. Statutes imposing rates on property are frequently subject to exemptions for property used exclusively for charitable purposes. In Ryde Municipal Council v Macquarie University [1978] HCA 58 ; (1978) 139 CLR 633, the High Court by majority of 3 2 held that a 'market' at Macquarie University consisting of retail and business premises let out to banks and shops for the benefit of students and staff was entitled to rating exemption under the relevant statute. The reason was that the enterprises run at the market were desirable for the functioning of the university and a use of the site for the purposes of the university: see [1978] HCA 58 ; (1978) 139 CLR 633 at 643 644 per Gibbs ACJ and at 650 per Stephen J (with whom Murphy J concurred). 40 However, where the commercial activity is neither part of the charitable purpose of the occupier nor merely incidental to that purpose, and is used only to generate income, the land will not qualify for a 'sole use' exemption because the land will not have been 'used' by the occupier: Commissioners of Taxation v Trustees of St Mark's Glebe [1902] AC 416; Ryde Municipal Council v Macquarie University [1978] HCA 58 ; (1978) 139 CLR 633 at 643 4 per Gibbs ACJ.
Case: Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation [1952] HCA 4 ; (1952) 85 CLR 159
Outcome: cited
Where the commercial activity is not a purpose of the university but is merely incidental to the carrying out of the purpose, the land on which it is conducted will still be used exclusively for charitable purposes. So in Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation [1952] HCA 4 ; (1952) 85 CLR 159, the sale for profit of produce grown at a facility for delinquent boys, an activity which the High Court held to be merely incidental to the charitable purpose of the occupier of the land, did not preclude the property from being exempt from the rating statute.
Case: Commissioners of Taxation v Trustees of St Mark's Glebe [1902] AC 416
Outcome: cited
However, where the commercial activity is neither part of the charitable purpose of the occupier nor merely incidental to that purpose, and is used only to generate income, the land will not qualify for a 'sole use' exemption because the land will not have been 'used' by the occupier: Commissioners of Taxation v Trustees of St Mark's Glebe [1902] AC 416; Ryde Municipal Council v Macquarie University [1978] HCA 58 ; (1978) 139 CLR 633 at 643 4 per Gibbs ACJ.
Case: School of Domestic Arts and Science v Carr 322 Ill 562, 153 NE 669 (1926)
Outcome: approved
There is a large body of law on this question in the United States: see D E Buckner, 'Property Used as Dining Rooms or Restaurants as within Tax Exemptions Extended to Property of Religious, Educational, Charitable, or Hospital Organizations' 72 ALR 2d 521. Some decisions favour the taxpayer and others favour the authorities. In some cases, the different results can be explained by differences in the wording of the relevant statutes or the degree to which the property of disputed use is integrated into the remainder of the property of the organisation. The leading textbook on trusts in the United States, Scott on Trusts , cites the decision of the Supreme Court of Illinois in School of Domestic Arts and Science v Carr 322 Ill 562, 153 NE 669 (1926) and concludes that where a charitable organisation applies any profits made by it to its charitable purposes, it will not thereby lose its charitable status: A Scott &amp; W Fratcher, The Law of Trusts , 4 th edn, Little, Brown &amp; Company, 1989) SS376. The School of Domestic Arts case was concerned with a tax on the property occupied by the School. The School conducted a restaurant located within its premises. The Court said at 322 Ill 562 at 569 570, 153 NE 669 at 672: "In the case at bar the school is supported by pay students, the proceeds from the public restaurant, and gifts from various people. The facts alleged and admitted are that no profit whatever is made; that a deficit exists each year and is paid by gifts from benevolent women; that every cent of revenue goes toward the operation of the school ... It cannot be questioned that such teaching in all its several branches is a benefit to the students, makes it possible for some of them to earn a living, and indirectly benefits the public and improves the happiness of man. The premises at No 6 North Michigan Avenue comprise the entire fifth floor of the Tower building and are primarily used as a school; 699 students receiving instruction when the bill was filed. Though the restaurant is also operated upon the same premises it is used in connection with the school and as an outlet for food cooked by the students, some of whom act in the capacity of waitresses. The restaurant also furnishes practical training for some of the students studying that branch of work. No part of any of the property was used for any purpose except in connection with and for the benefit and advancement of the school. We are of opinion appellant is a charitable organization and the property here involved is actually and exclusively used for the charitable purpose for which appellant was organized and is therefore exempt from taxation ..." To the same effect is Decatur Sports Foundation v Department of Revenue 177 Ill App 3d 696, 532 NE 2d 576 (Il Ap Ct, 4 th Dist, 1988). As will have been apparent, I agree with this approach. It accords with the thrust of the decisions I have cited at [33] [35].
Case: Decatur Sports Foundation v Department of Revenue 177 Ill App 3d 696, 532 NE 2d 576
Outcome: approved
There is a large body of law on this question in the United States: see D E Buckner, 'Property Used as Dining Rooms or Restaurants as within Tax Exemptions Extended to Property of Religious, Educational, Charitable, or Hospital Organizations' 72 ALR 2d 521. Some decisions favour the taxpayer and others favour the authorities. In some cases, the different results can be explained by differences in the wording of the relevant statutes or the degree to which the property of disputed use is integrated into the remainder of the property of the organisation. The leading textbook on trusts in the United States, Scott on Trusts , cites the decision of the Supreme Court of Illinois in School of Domestic Arts and Science v Carr 322 Ill 562, 153 NE 669 (1926) and concludes that where a charitable organisation applies any profits made by it to its charitable purposes, it will not thereby lose its charitable status: A Scott &amp; W Fratcher, The Law of Trusts , 4 th edn, Little, Brown &amp; Company, 1989) SS376. The School of Domestic Arts case was concerned with a tax on the property occupied by the School. The School conducted a restaurant located within its premises. The Court said at 322 Ill 562 at 569 570, 153 NE 669 at 672: "In the case at bar the school is supported by pay students, the proceeds from the public restaurant, and gifts from various people. The facts alleged and admitted are that no profit whatever is made; that a deficit exists each year and is paid by gifts from benevolent women; that every cent of revenue goes toward the operation of the school ... It cannot be questioned that such teaching in all its several branches is a benefit to the students, makes it possible for some of them to earn a living, and indirectly benefits the public and improves the happiness of man. The premises at No 6 North Michigan Avenue comprise the entire fifth floor of the Tower building and are primarily used as a school; 699 students receiving instruction when the bill was filed. Though the restaurant is also operated upon the same premises it is used in connection with the school and as an outlet for food cooked by the students, some of whom act in the capacity of waitresses. The restaurant also furnishes practical training for some of the students studying that branch of work. No part of any of the property was used for any purpose except in connection with and for the benefit and advancement of the school. We are of opinion appellant is a charitable organization and the property here involved is actually and exclusively used for the charitable purpose for which appellant was organized and is therefore exempt from taxation ..." To the same effect is Decatur Sports Foundation v Department of Revenue 177 Ill App 3d 696, 532 NE 2d 576 (Il Ap Ct, 4 th Dist, 1988). As will have been apparent, I agree with this approach. It accords with the thrust of the decisions I have cited at [33] [35].