mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505 
Outcome: applied
In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505, Kiefel and Bennett JJ observed at [72] the Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a visa. Their Honours referred to a number of authorities which make it clear that a precondition for the exercise of the discretion is failure to satisfy the character test. 49 The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] . 50 In Huynh , the majority justices pointed out at [74] that a reference to the subject matter, scope and purpose confirms the breadth of the Minister's discretion. The object of the Act is to regulate, in the national interest, the entry into and presence in Australia of non-citizens: see Huynh at [74]. It follows from what their Honours said that the Minister is not bound to consider the level of involvement in an offence which carries a sentence of imprisonment for the requisite term; nevertheless, he or she may do so in the exercise of the discretion. 51 It also follows, in my view from the wording of s 501 considered as a whole, and from the observations of their Honours in Huynh , that the Minister was not precluded in the exercise of his discretion, from having regard to conduct in respect of which charges were laid but on which Mr Ngaronoa was acquitted. 52 First, as is implicit in the observations of their Honours in Huynh, the object of the provision is not confined to prohibiting the entry or presence in Australia of persons who have been convicted of criminal conduct.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340
Outcome: followed
In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 at [102] [103], Madgwick J considered that the observations of Dixon J in Briginshaw could be applied to a decision made by the Refugee Review Tribunal. However, the decision of the majority judges in the Full Court in QAAH (Wilcox and Madgwick JJ) was reversed by the High Court: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340.
Case: Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187
Outcome: referred to
Second, as a Full Court observed in Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194, s 501 is concerned with a person's conduct, either "general conduct" or conduct of a more particular kind which may be described as "criminal conduct". This may be seen quite clearly in s 501(6) which provides that a person does not pass the character test if he or she has a substantial criminal record (see s 501(6)(a) or is not of good character having regard to, inter alia , the person's past and present general conduct. (See s 501(6)(c)(ii)). 54 Third, Direction No. 21 states that the object of the Act is to regulate in the national interest, the coming into and presence in Australia of non-citizens. It also states that the Minister has a responsibility to protect the community from criminal and "other reprehensible conduct".
Case: Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723
Outcome: distinguished
In Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 at [38] , Allsop J recognised that this principle may require the Minister to do more than merely provide a person with a copy of s 501 , Direction No. 21 and his or her criminal record. How the material is to be treated by the Department in its Ministerial recommendation may enliven a fresh obligation to bring a critical aspect to the attention of the person affected: Navarrete at [38]. 86 The Third Notice did not merely refer to the charges arising from the attack. It attached a summary of the information that the Department identified as material that might be relied upon to assess whether to exercise the discretion to cancel Mr Ngaronoa's visa. The covering letter told Mr Ngaranoa that he had an opportunity to comment on the information. It informed him that if he did not provide any further information, the Minister might rely upon the information identified in the letter to determine that the visa was liable to cancellation: see [31] above. 87 In my view, this was sufficient to satisfy the test stated in Alphaone. Mr Ngaronoa was informed in the letter that the Minister could take into account the material stated in the summary of protected information in his decision to cancel the visa. The use to which the Minister could put the information was sufficiently described. This is not a case in which a fresh obligation was enlivened within the test required in Navarrete because Mr Ngaronoa was told how the material could be used.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: referred to
The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] .
Case: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 
Outcome: referred to
In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 at [102] [103], Madgwick J considered that the observations of Dixon J in Briginshaw could be applied to a decision made by the Refugee Review Tribunal. However, the decision of the majority judges in the Full Court in QAAH (Wilcox and Madgwick JJ) was reversed by the High Court: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340.
Case: Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807
Outcome: distinguished
It is true, as Allsop J observed in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 at [31] , that in circumstances such as the present, procedural fairness requires an objectively adequate opportunity for the person affected to deal with the task that is presented. 89 In Sales , Allsop J considered that a period of fourteen days was insufficient for a person to respond to a notice of intention to cancel a visa. His Honour took into account the difficulties faced by a person who had spent most of his adult life in prison. His Honour also pointed to the serious personal consequences to the applicant and his family of an adverse decision by the Minister: see Sales at [32] [34]. 90 By contrast, in the present case, it seems to me that it was sufficiently clear to Mr Ngaronoa how the summary of the protected information could be used by the Minister. I have come to that view on an objective consideration of the terms of the Third Notice and the attached summary. The gravity of the allegations set out in the summary speak for themselves. I have had regard to Mr Ngaronoa's personal circumstances. I do not consider it is a matter on which evidence of his subjective thought processes would have assisted.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2007) 231 ALR 592 
Outcome: referred to
That passage was referred to by the High Court, with apparent approval, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2007) 231 ALR 592 at [29] , [49].
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: cited
Federal Magistrate Emmett concluded that the Tribunal was not obliged to deal with claims that are not articulated and which do not clearly arise on the material before it. No claim was made to the Tribunal for persecution on the grounds of political opinion. Her Honour observed, with reference to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] , that an unarticulated claim must be raised squarely on the material available to the Tribunal before it has a duty to consider it. Her Honour also relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [1] where Gleeson CJ stated that, although the Tribunal proceedings are not adversarial, the decision of the Tribunal must be considered in the light of the basis upon which the application was made.
Case: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157
Outcome: cited
The Tribunal is required to deal with ' the case raised by the material or evidence before it ' ( NABE at [58] citing Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157). The Tribunal is not limited to the ' case ' articulated by an applicant if evidence and material which it accepts raise a case not articulated. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE at [58]) (emphasis added). At [59], the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it: '[t] he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it ' (at [61]).
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: cited
The absence of a finding of a relevant fact may amount to jurisdictional error ( NABE at [55]). A failure to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction ( NABE at [55] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] and [95]). The task of the Tribunal and the way in which it discharges that function flow from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word "review" ( NABE at [56]). That includes a requirement to consider all of the claims of the applicants ( NABE at [57] approving Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]).
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801
Outcome: cited
The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov , at 405, that '[t] he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances ' and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ' can only deal with the claims actually made '. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ' whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it '.
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Outcome: cited
The absence of a finding of a relevant fact may amount to jurisdictional error ( NABE at [55]). A failure to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction ( NABE at [55] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] and [95]). The task of the Tribunal and the way in which it discharges that function flow from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word "review" ( NABE at [56]). That includes a requirement to consider all of the claims of the applicants ( NABE at [57] approving Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: cited
The applicants were represented and present at the hearing before the Tribunal. There is no basis for a suggestion that the Tribunal interfered with or prevented them from presenting their case. Nor can it be said that the conduct of the applicants' solicitor during the hearing rendered the Tribunal's invitation to appear and give evidence pursuant to s 425 of the Act ' a hollow shell or an empty gesture ' ( Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [33] ; in any event, see Minister for Immigration &amp; Multicultural Affairs v SZFDE [2006] FCAFC 142 at [94] , [134] and [212]). It has not been shown why the Tribunal was under any obligation to inquire into the solicitor (or migration agent)/client relationship in relation to the matters being put to the Tribunal.
Case: Minister for Immigration &amp; Multicultural Affairs v SZFDE [2006] FCAFC 142
Outcome: cited
The applicants were represented and present at the hearing before the Tribunal. There is no basis for a suggestion that the Tribunal interfered with or prevented them from presenting their case. Nor can it be said that the conduct of the applicants' solicitor during the hearing rendered the Tribunal's invitation to appear and give evidence pursuant to s 425 of the Act ' a hollow shell or an empty gesture ' ( Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 at [33] ; in any event, see Minister for Immigration &amp; Multicultural Affairs v SZFDE [2006] FCAFC 142 at [94] , [134] and [212]). It has not been shown why the Tribunal was under any obligation to inquire into the solicitor (or migration agent)/client relationship in relation to the matters being put to the Tribunal.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
The High Court discussed the task of the Tribunal in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [70] [75]. The task of the Tribunal is to review the decisions of the Minister or the Delegate. The Tribunal may affirm, vary or remit the decision, or set it aside and substitute a new decision (s 415(2) of the Act). As pointed out by McHugh, Gummow and Hayne JJ at [73], the duty of the Tribunal is to take account of all relevant considerations, as identified by the Act.
Case: NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355
Outcome: cited
In NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355 the appellant had, as here, sought to raise fresh grounds of appeal not relied on before the Federal Magistrates Court. As Branson J pointed out at [22], leave is required to argue on appeal an issue not raised below. There, as here, neither the appellant's written submissions nor his affidavit addressed the basis on which the Court must be satisfied that it is expedient and in the interests of justice for the issue to be raised for the first time on appeal. Her Honour said at [26] that it is not appropriate to grant an appellant leave to raise an issue simply because, as he contended, it would be just to allow him to do so. If the issue upon which an appellant wishes to rely for the first time is without merit, leave should not be granted to raise the issue before this Court. 22 The affidavit contains general, broad assertions that the applicants' ' migration agent ' was ' undermining ' the case before the Tribunal, that the agent's behaviour was ' unethical ', that he had done ' damage ' to the applicants, had made submissions without instructions and had ' damaged the credibility of our refugee application immeasurably before the eyes of the Tribunal '. The male applicant said that he had not known what was being said, as the discussions were not interpreted. 23 He also says that his counsel in the hearing before Emmett FM ' has disappointed us by advancing mostly unsustainable arguments with only one exception '. He asserts, with respect to his previous lawyers that ' one has seriously damaged our case while being paid by us and the other has done our case without much competence '.
Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1
Outcome: cited
Whether a decision is interlocutory or final depends on the legal effect of the judgment ( Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] ). There is a conflict of authority in this Court as to the position where a Federal Magistrate finds an appeal incompetent for failure to comply with s 477 of the Act yet also makes a decision "on the merits" to dismiss the appeal ( SZGAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 227 ALR 683 at [68]-[69]). That conflict does not require resolution here. For the reasons which follow, the proposed grounds of appeal have no prospects of success. It follows that, independently of the applicants' explanation for what is a very short delay, neither leave to file an extension of time nor leave to appeal should be granted.
Case: SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
Outcome: cited
The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov , at 405, that '[t] he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances ' and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ' can only deal with the claims actually made '. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ' whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it '.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
None of the matters raised or information cited are referred to in the Tribunal's reasons. They do not form the reason or part of the reason for its decision. The Tribunal was not obliged to provide particulars of its reasoning, nor of defects in the applicants' case ( SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [206] , [223]). 43 Section 424A(1) has no application. This ground is without merit. This was not a ground relied upon before the Federal Magistrate where the applicants were legally represented and no good reason is given why it is now being raised for the first time on appeal or why it is in the interests of justice for it to be considered. 44 Leave to rely on this ground should be refused.
Case: SZGAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 227 ALR 683
Outcome: cited
Whether a decision is interlocutory or final depends on the legal effect of the judgment ( Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] ). There is a conflict of authority in this Court as to the position where a Federal Magistrate finds an appeal incompetent for failure to comply with s 477 of the Act yet also makes a decision "on the merits" to dismiss the appeal ( SZGAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2005) 227 ALR 683 at [68]-[69]). That conflict does not require resolution here. For the reasons which follow, the proposed grounds of appeal have no prospects of success. It follows that, independently of the applicants' explanation for what is a very short delay, neither leave to file an extension of time nor leave to appeal should be granted.
Case: A Goninan &amp; Co Ltd v Commissioner of Patents [1997] FCA 424 ; (1997) 75 FCR 200
Outcome: cited
The joint submissions first addressed the question of the Court's jurisdiction to review the decision under the ADJR Act. The parties contended that the decision was one of an administrative character made under an enactment, being reg 5.10 of the Patents Regulations . Reference was made to A Goninan &amp; Co Ltd v Commissioner of Patents [1997] FCA 424 ; (1997) 75 FCR 200 which involved review under the ADJR Act of a decision made pursuant to reg 5.10(2) of the Patents Regulations to allow further time for the filing of evidence. I am satisfied that the Court has jurisdiction and power to make the order sought. 19 IGT submits to the Court as part of the joint submissions, that the making of the decision was an improper exercise of the power conferred by reg 5.10(4) in that: (i) it constituted the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case, in contravention of sections 5(1)(e) and 5(2)(f) of the AD(JR) Act; (ii) in exercising the power, the Delegate failed to take account of relevant considerations, in contravention of sections 5(1)(e) and 5(2)(b) of the AD(JR) Act. The joint submission then went on: Aristocrat accepts, solely for the purpose of the Court making the consent orders sought by IGT and Aristocrat that it is open to the Court to so find. It may be observed immediately that there can be no question of any contravention of s 5 of the ADJR Act. That section identifies grounds of review. It does not mandate or prohibit conduct by decision-makers.