mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 (2006) 231 ALR 592
Outcome: cited
In all of these ways, the interpreter's errors were of significance, or at least of potential significance, to the outcome of the case. The errors deprived the appellant of a fair opportunity to succeed. They therefore amounted to a denial of procedural fairness. To the extent to which the appellant was not able to put before the Tribunal the evidence that he wanted to, because elements of his answers were omitted from the interpreter's translation of them, he was deprived of the opportunity to give evidence to the Tribunal. Section 425(1) of the Migration Act obliged the Tribunal to invite the appellant to appear before it to give evidence relating to the issues arising in relation to the decision of the Minister's delegate. It is now well-established that this obligation is much more than a formality. Even though the invitation be issued, if an applicant is not afforded a real opportunity to give evidence, so that the promise of the invitation has not been fulfilled, then the Tribunal will have failed to comply with its obligation under s 425(1). See Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] - [41] . See also SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 (2006) 231 ALR 592 at [33] .
Case: WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 (2003) 131 FCR 511
Outcome: cited
Perera has been followed in several cases. See particularly WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 (2003) 131 FCR 511 at [64] , and the cases cited there. The Full Court accepted that, although s 425(1) of the Migration Act has been amended since Perera , what Kenny J said in Perera remains applicable to the section as amended.
Case: Cruse v Construction, Forestry, Mining and Energy Union [2008] FCA 1267
Outcome: referred to
On 22 August 2008, the Court published its reasons for judgment in Cruse v Construction, Forestry, Mining and Energy Union [2008] FCA 1267 ("the substantive judgment"). In the substantive judgment, the Court held that Mr Fry, a delegate of the respondent Union, breached ss 298SC and 170NC of the Workplace Relations Act 1996 (Cth) ("the WR Act "). It also found the Union vicariously liable for Mr Fry's breaches. This judgment should be read together with the substantive judgment. It deals with the issue of what penalties, if any, should be imposed on Mr Fry and the Union. 2 Mr Fry was employed at the Hamilton site referred to in the substantive judgment. He was engaged on the construction side of the project. He was also a CFMEU shop steward. It was custom and practice on the construction side of the site for employees to be members of the CFMEU. The position of Mr Anton was unusual because he was a self-employed building contractor engaged to perform odd jobs around the Hamilton site. Mr Fry's role as shop steward included the enrolment of non-members on the construction side of the site into the CFMEU. He enrolled Mr Anton but 'gilded the lily' in encouraging him to do so by saying that he had an obligation to join the CFMEU. No doubt, as a CFMEU shop steward, and with everyone else on the construction side of the site almost certainly being in the CFMEU, Mr Fry considered that Mr Anton should be in the CFMEU. That does not excuse the breach of s 298SC of the WR Act committed by Mr Fry, but it does explain it and put it in context. 3 Mr Fry is fifty-nine years old. He has no history of prior contravention of any provision of the WR Act or the more onerous Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act "), which places special obligations and requirements on building and construction workers which do not apply to other sections of the workforce. Mr Fry lives in Hamilton in rural Victoria. He is employed as a scaffolder doing work around the Western District of Victoria. He is not a wealthy man. He has given evidence that he "will not at any time in the future make a false statement to anyone regarding their obligation to be a member of the CFMEU".
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: cited
The applicant additionally seeks to rely on the International Convention on the Rights of the Child. However as Mason CJ and Deane J stated in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, since the Convention has not been incorporated into Australian municipal law, it cannot operate as a direct source of individual rights and obligations. Nonetheless, where the provisions of the Convention are relevant to the exercise of a statutory discretion, a legitimate expectation exists that the decision-maker will act in accordance with the Convention in exercising that discretion. However as discussed above, the decision in the present case was ultimately based upon the issue as to whether the applicant satisfied certain statutory criteria as opposed to discretionary considerations, and as such the applicant could not seek to rely upon the Convention. 13 The appeal has no viable foundation must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 5 May 2006 The Applicant was self-represented Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 March 2006 Date of Judgment: 5 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/508.html
Case: Bird v The Commonwealth [1988] HCA 23 ; (1988) 165 CLR 1
Outcome: cited
the continued interest must be one "of that kind". In context, the reference in cl 845.213(b) to "of that kind" is, in my opinion, to be read as a reference to the "main business" or businesses referred to in cl 845.213(a). The use of "kind" in drafting might in other contexts admit of a more generic coverage. The embrace of the word has given rise in other contexts to sharp divisions of judicial opinion, see, for example, Bird v The Commonwealth [1988] HCA 23 ; (1988) 165 CLR 1. Here though, "kind" is governed not by an indefinite but by a very specific definite article, "that". It is also necessary to recall that "main business" is itself a defined term. One feature of that definition, to which I have already referred, is a limit on the number of businesses which may be nominated as a "main business". To give "of that kind" an open ended, generic construction so as to embrace yet another business, albeit one akin to that or those nominated, would be to subvert: (a) The limitation found in the definition of "main business"; and (b) The very managerial particular involvement, found in para (1)(b) of the definition, required for a business to be a "main business". There is no obvious reason for such subversion in respect of this particular visa subclass. On the other hand, construing "of that kind" as a reference to the "main business" or businesses referred to in cl 845.213(a) sits comfortably with a subclass the intent of which seems to be to provide a basis for the granting of a visa to those (and to the family of those) who have made a significant and continuing investment in and managerial involvement with at least one and not more than two nominated main businesses in Australia. Another feature of para (1)(b) of the definition of "main business" in reg 1.11 of the Regulations is that it is activity related. Furthermore, the language employed in respect of the activity is "maintains or has maintained continuous involvement". Necessarily, the determining of whether at the time of decision the requirements of this paragraph are met requires an assessment of an activity over a continuum. What has the visa applicant been doing in relation to the "main business" or businesses since the date of application? Further, the requirements specified in the paragraphs of the definition are cumulative.
Case: Buck v Bavone [1976] HCA 24 ; (1975) 135 CLR 110
Outcome: cited
the circumstances of Saffron's Case, the proceeding before the Federal Magistrates Court was in no sense an appeal by way of rehearing where a particular point had not been taken in a court below. Rather, it was a judicial review proceeding in respect of the Tribunal's decision. Further, having regarding to s 65 of the Act, it was a judicial review proceeding in respect of an ultimate conclusion by the Tribunal, sitting in place of the ministerial delegate, that it was not "satisfied" that the relevant criteria for the grant of the visa sought were met. Such "satisfaction" based decisions are not unexaminable on judicial review, as the High Court noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276 by reference with approval to remarks on that subject made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1975) 135 CLR 110 at 118-119.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: considered
the circumstances of Saffron's Case, the proceeding before the Federal Magistrates Court was in no sense an appeal by way of rehearing where a particular point had not been taken in a court below. Rather, it was a judicial review proceeding in respect of the Tribunal's decision. Further, having regarding to s 65 of the Act, it was a judicial review proceeding in respect of an ultimate conclusion by the Tribunal, sitting in place of the ministerial delegate, that it was not "satisfied" that the relevant criteria for the grant of the visa sought were met. Such "satisfaction" based decisions are not unexaminable on judicial review, as the High Court noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276 by reference with approval to remarks on that subject made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1975) 135 CLR 110 at 118-119.
Case: NAKG of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1600
Outcome: considered
pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), I am presently exercising the appellate jurisdiction of the Court, I consider that I am bound by any decision given in the appellate jurisdiction by a Full Court of this Court which is in point: NAKG of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1600 at [48] per Jacobson J; S ZBPQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 568 at [5] per Hely J.
Case: Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481 ; (2003) 129 FCR 448
Outcome: considered
the Federal Magistrates Court, the Appellant's contention was that it was not lawfully possible for the Tribunal to have concluded that the meaning of the word "business" in the definition of "main business" was such that, even though several types of enterprise might be discernable in its operations, there could in law only be one "business" carried on by that legal entity. In disposing of that contention, the learned Federal Magistrate noted that in Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481 ; (2003) 129 FCR 448 Branson J, having observed that the word "business" was not defined for the purposes of the Regulations, derived assistance as to its meaning as found in standard dictionaries. In that case her Honour concluded that it was not a characteristic of the meaning of the word "business" that a business could only be carried on by one legal entity. The learned Federal Magistrate considered that the converse of this also followed from the word's ordinary meaning, ie that a single legal entity could also carry on more than one "business" (reasons for judgment, para 41). Having reached that conclusion, his Honour then found that it was open to the Tribunal, as a matter of fact, to conclude that GNI operated two businesses. There was no error in the way in which the learned Federal Magistrate approached the meaning of the word "business" and its reach. As did Branson J in Nassif (at 454-455), I gain assistance as to the meaning the word from standard dictionaries. The word undoubtedly has chameleon like qualities, taking its meaning from the context in which it is used. In both the Oxford and the Macquarie Dictionaries the meaning of the word "business", when used in a commercial sense, is "enterprise". That is the sense in which it is used in the terms "main business" and "qualifying business" in the Regulations. That this is so is reinforced by its being treated, in the definition of "qualifying business", as a synonym for "enterprise". So construed, there is nothing about the meaning of the word "business" as used in the context of the Regulations which carries with it the necessary corollary that a legal entity can only ever, on its true meaning, have or conduct but one "business". Such a construction of the word "business" accords with common experience. It is by no means unusual for a legal entity to cease one particular field of commercial endeavour by the disposal of what is aptly termed a "business" without ceasing altogether to trade. Given this meaning of the word, whether or not GNI had one or two "main businesses" was nothing more than a question of fact and one for the Tribunal alone. The learned Federal Magistrate well appreciated this (reasons for judgement, para 44). It is certainly not one this Court on subsequent appeal.
Case: Saffron v Societe Miniere Cafrika [1958] HCA 50 ; (1958) 100 CLR 231
Outcome: distinguished
seems from the learned Federal Magistrate's reasons for judgment that, in the course of oral submissions, the Appellant also advanced a case, which was not revealed by the grounds of judicial review that it had specified, that the Tribunal had erred by failing to consider whether each of the "main businesses" was a "qualifying business". The learned Federal Magistrate noted (reasons for judgment, para 51) that neither party had put before the Tribunal matters relevant to establishing a "qualifying business" which was a subject "taken as said". His Honour then opined (reasons for judgment, para 52), by reference to Saffron v Societe Miniere Cafrika [1958] HCA 50 ; (1958) 100 CLR 231 ( Saffron's Case ), "The matter never having been put in issue before this time cannot now be raised". On the appeal to this Court, the Appellant's submission was that the Tribunal had erred because it did not properly turn its mind to the question of whether the two businesses specified on the visa application form were "qualifying businesses" as defined by reg 1.03 of the Regulations. It was submitted that only by so doing could the Tribunal properly have determined that those businesses were separate "main businesses" for the purposes of reg 1.1(2) of the Regulations. From this it was said to follow that the rejection of United's business as a "main business" was erroneous because it did not violate the regulatory prohibition against the nomination of more than two "main businesses". In turn, the learned Federal Magistrate was said to have fallen into error by failing to hold that the identified alleged error on the part of the Tribunal was jurisdictional. The learned Federal Magistrate was also submitted erroneously to have concluded that, because the question of whether the originally specified main businesses were qualifying businesses had not been raised before the Tribunal, it could not be raised as a jurisdictional error ground before the Federal Magistrates Court. The Appellant submitted that "the failure of the Tribunal to even turn its mind to the question of whether the main businesses nominated on the visa application form were 'qualifying businesses', was a fundamental failure to understand the task before it". The Appellant contended that the reference by the learned Magistrate to Saffron 's Case was inapt. With respect, I agree.
Case: S ZBPQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 568
Outcome: considered
pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), I am presently exercising the appellate jurisdiction of the Court, I consider that I am bound by any decision given in the appellate jurisdiction by a Full Court of this Court which is in point: NAKG of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1600 at [48] per Jacobson J; S ZBPQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 568 at [5] per Hely J.
Case: One-Tel v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548
Outcome: followed
The only remaining question is one in relation to costs. I have been referred to the decision of Burchett J in One-Tel v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 which was followed by Weinberg J in Australian Consumer &amp; Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396. I think the principles in that case are applicable in this matter. The general principle is, of course, that costs should follow the outcome, and the outcome in this case is that the applicant was successful and has achieved the result for which the proceedings were instituted.
Case: Australian Consumer &amp; Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396
Outcome: followed
The only remaining question is one in relation to costs. I have been referred to the decision of Burchett J in One-Tel v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 which was followed by Weinberg J in Australian Consumer &amp; Competition Commission v Contact Plus Group Pty Ltd (in liq) [2006] FCA 396. I think the principles in that case are applicable in this matter. The general principle is, of course, that costs should follow the outcome, and the outcome in this case is that the applicant was successful and has achieved the result for which the proceedings were instituted.
Case: Boral Besser Masonry Ltd v Australia Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374
Outcome: discussed
am of opinion that the present circumstances are similar to those in SPP Nemo [1998] FCA 1627 at pp 23-24 and that Report 134 did not provide any basis for the Minister to form any view on the issues of material injury or any causative effect of Siam's dumping on Qenos. The mathematical calculations contained in the confidential material proceeded upon the unfounded assumption that the non-injurious price had been fixed by reference to the earlier examination of the minimum level of pricing necessary to eliminate or prevent actual material injury to Qenos or its threat or recurrence. Mere price competition, by itself, even from dumped product, was insufficient because of s 269TAE(2A)(d). One purpose of price competition is to win customers from a competitor, as Gleeson CJ and Callinan J observed in Boral Besser Masonry Ltd v Australia Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 at 411 [86] - [87] , and, in that sense, a purpose of competitive conduct is to damage a competitor. The relevant injury for s 269TACA(a) is that caused or likely to be caused by the dumping; that is by the sales of imported product into Australia at a level of price sufficient to cause or threaten material injury to Qenos' business or its recurrence. That was not addressed in Report 134. The Report itself demonstrated that there was no immediate past or current injury. There was no suggestion in the Report of any imminent or foreseeable change to the current position that had been reached in the competitive and growing market, it had found, in which prices and costs were increasing. The absence of any analysis of the questions of material injury, causation or how the non-injurious price was set consistently with the requirements of s 269TACA(a) give rise to the inference, that I draw, that the Minister had no good reason for making the declaration complained of so far as it affected Siam: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] - [40] per Gleeson CJ, Gummow and Heydon JJ.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
under s 269ZDB(1)(a) the Minister's discretion as to what information, in addition to the report of the CEO, is relevant to making a declaration, is not absolute. First, in the chapeau to s 269ZDB(1) the Parliament reinforced that the declaration is "for the purposes of this Act and the Dumping Duty Act ". Secondly, s 269ZDA(3) prescribes criteria that the CEO must consider in preparing his or her report to the Minister under s 269ZDA(5). While s 269ZDA(3)(b) is in similarly broad terms to s 269ZDB(1) in permitting the CEO to have regard to any other matter that he or she considers to be relevant to the review, the CEO's consideration cannot be at large. There must be a reasonable connection between what information the Minister (under s 269ZDB(1)), or matter the CEO (under s 269ZDA(3)(b)), considers relevant and the function each performs in the statutory process. Each must act in good faith and cannot be capricious or arbitrary in considering information or a matter to be relevant. It may be difficult to show, the more so in the case of the Minister, that the discretion miscarried where the selection of what the Minister or CEO considered to be relevant was or involved a matter of policy or opinion: cf Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Wu Shan Liang 185 CLR at 275-276 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Case: Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142 ; (2008) 170 FCR 560
Outcome: applied
treaties should be interpreted uniformly by States party: LK v Director General, Department of Community Services (2009) 253 ALR 202 at 213 [36] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. The starting point for the process of construction of the Act, is found in the words that the Parliament has chosen. The terms of the implementation agreement, or other international convention, are an aid to construction of domestic legislation enacted by the Parliament: see Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142 ; (2008) 170 FCR 560 at 568-570 [32] - [41] per French, Rares and Besanko JJ. International treaties should be interpreted uniformly by contracting States. But where a convention deliberately leaves a term undefined in a context that reflects the intention of the States party to treat its application as a question of pure fact, the use of that term in domestic legislation will not require the domestic court to apply decisions involving that term in other jurisdictions as determinations of law rather than fact: LK v Director General 253 ALR at 213 [36] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. Thus, decisions of the WTO Appellate Body and a panel of the WTO Dispute Settlement Body, on the construction of the implementation agreement cannot be determinative of the construction of the Act and the Dumping Duty Act . The latter have been framed with the intention to give effect to the implementation agreement in a particular manner crafted by the Parliament in its own words. The task of the Court is to construe the words of the statutes, but nonetheless to have regard to the context provided by the implementation agreement and decisions of other jurisdictions, where relevant, that may shed light on the intention of the Parliament: see too Chiropedic Bedding (2008) 170 FCR at 568-569 [32]-[36] per French, Rares and Besanko JJ.