mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168 
Outcome: referred to
His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.
Case: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 
Outcome: discussed
French J then discussed more recent High Court authority. He referred to Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, a case which concerned the extent of the naturalization and aliens power under s 51(xix) of the Constitution . Mr Taylor, who faced deportation on account of criminal conviction, was a non-citizen whose absorption into the Australian community was not in issue. He had come to Australia in 1966 as a child, and been educated and made his home in this country. However, he had not taken out Australian citizenship. The Minister had purportedly cancelled his "absorbed person visa" which Gaudron J suggested reflected a concession that he had been completely absorbed into the community prior to April 1984. That, of course, was one of the requisites for an "absorbed person visa". 32 In Ex parte Taylor the High Court held, by a four to three majority, that Mr Taylor, as a British subject, was not an alien but a subject of the Queen of Australia. As such the power to cancel a visa under s 501(3) of the Act could not apply to him. 33 Ex parte Taylor was effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 in relation to the time from which British subjects entering Australia would remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Ex parte Taylor , the question of absorption was not an issue in Shaw .
Case: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 
Outcome: discussed
Ex parte Taylor was effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 in relation to the time from which British subjects entering Australia would remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Ex parte Taylor , the question of absorption was not an issue in Shaw . 34 Importantly for present purposes, in Shaw Callinan J (at [183]) accepted that the commission of serious crimes against the community may be inconsistent with a person's absorption into the community. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 in that regard. He noted, however, that Mr Shaw had been living in Australia for more than twelve years before his first conviction which occurred when he was still a child. His Honour concluded that, in those circumstances, Mr Shaw had been absorbed into the Australian community by the time he came to the notice of the criminal courts. He added that he would not regard that first conviction, occurring as it did when Mr Shaw was so young, as putting him beyond the community of ordinary Australians.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162
Outcome: referred to
Importantly for present purposes, in Shaw Callinan J (at [183]) accepted that the commission of serious crimes against the community may be inconsistent with a person's absorption into the community. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 in that regard. He noted, however, that Mr Shaw had been living in Australia for more than twelve years before his first conviction which occurred when he was still a child. His Honour concluded that, in those circumstances, Mr Shaw had been absorbed into the Australian community by the time he came to the notice of the criminal courts. He added that he would not regard that first conviction, occurring as it did when Mr Shaw was so young, as putting him beyond the community of ordinary Australians.
Case: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133 
Outcome: discussed
It was submitted on behalf of the applicant that the Minister must have paid only lip service to the best interests of the child, otherwise she would not have come to the decision that she did. In support of that submission counsel referred to Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. There the Full Court held that the Administrative Appeals Tribunal had failed to treat the best interests of the children as a "primary consideration" in its determination. 48 In Wan , it was said to be of particular significance that the Tribunal had failed to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to the application for a visa. It was also noted that the Tribunal had failed to describe the best interests of the children as a "primary consideration". 49 Neither of those factors is present in this case. The Minister plainly gave detailed attention to the best interests of the applicant's son, which she accepted favoured non-cancellation. She recognised that this was a primary consideration. She said she gave it "great weight". 50 Counsel for the applicant relied, in particular, upon the following extract from the Full Court's judgment in Wan (at [32]): "An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration." 51 In my view, there is nothing in this passage which supports the applicant's claim. The balancing process described above accords precisely with the approach that the Minister herself adopted. 52 In truth, Ground 2, and the applicant's submissions in support of that ground, seek merely to have this Court engage in merits review. That the Court cannot do.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370
Outcome: referred to
It was submitted on behalf of Mr Moore, in the proceeding before me, that, in accordance with the authorities, his criminal record prior to 1984 was such that it precluded him from having been absorbed into the Australian community. As a result, he had not "ceased to be an immigrant" within the meaning of s 34(2)(b) of the Act , and therefore had not acquired an absorbed person visa. That in turn meant, using the reasoning of French J in Johnson, that the Minister had cancelled a non-existent visa. If that were so, s 501F(3) would have no application to this case because, as is implicit in the reasoning of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370, that section can only be invoked in circumstances where a valid visa has been cancelled.
Case: Aaron's Reefs Limited v Twiss [1896] AC 273
Outcome: followed
In Webb v Block [1928] HCA 47 ; (1928) 41 CLR 331 at 367 Isaacs J used that passage to emphasise that omission of material matter can change the sense in which what is communicated is understood by the ordinary reasonable publishee, adding that such an omission could make what was published 'lie like truth' as in Lord Blackburn's famous speech in Smith v Chadwick (1884) 9 App Cas 187 at 201. And in a passage applied by the English Court of Criminal Appeal in Rex v Kylsant (Lord) [1932] 1 KB 442 at 447-448, Lord Halsbury said in Aaron's Reefs Limited v Twiss [1896] AC 273 at 281: 'It remains only to consider the final question, namely, whether or not there was evidence for the jury which would justify them in finding that this was a fraudulent prospectus that these statements were fraudulent and false. Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together . Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy .... It is said there is no specific allegation of fact which is proved to be false. Again I protest, as I have said, against that being the true test. I should say, taking the whole thing together, was there false representation? I do not care by what means it is conveyed by what trick or device or ambiguous language: all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction. If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue.' (emphasis added)
Case: Attorney-General (Q) v Australian Industrial Relations Commission [2002] HCA 42 ; (2002) 213 CLR 485
Outcome: followed
For these reasons, I am of opinion that the appeal must be allowed. The Tribunal did not exercise its jurisdiction in accordance with the Act. The appellant is entitled to orders quashing the decision and remitting the matter to the Tribunal (see Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at p 287; Attorney-General (Q) v Australian Industrial Relations Commission [2002] HCA 42 ; (2002) 213 CLR 485 at 503[43]). I certify that the preceding eighty seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 April 2006 Applicant: In person Solicitor for the Respondents: Clayton Utz Date of Hearing: 14 February 2006 Date final written submissions were received: 14 March 2006 Date of Judgment: 21 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/435.html
Case: BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: cited
When parties to a contract intend to incorporate material by reference, likewise, the Court makes an objective assessment of what was intended to be brought into the contract (e.g. China Ocean Shipping Co Ltd v PS Chellaram &amp; Co Ltd (1990) 28 NSWLR 354 at p 363B-E per Gleeson CJ, 395F per Samuels JA agreeing; Trustees Executors and Agency Co Ltd v Peters [1960] HCA 16 ; (1960) 102 CLR 537 at p 548 per Kitto J). And, when the question of a whether a term ought be implied into a contract is considered, the Courts have used the expression, in the past, whether an 'officious bystander' would have assented to the proposition that the parties intended, without expressly so stating, that the term form part of their contract: cp BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-284.
Case: Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: discussed
In contrast, in other areas of law, regard is had to the subjective effect on a person of representations or conduct. In Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 83-89 [98] - [110] the High Court discussed circumstances in respect of claims of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and the tort of passing off which were relevant to establishing either cause of action. The Court contrasted situations in which such claims were made, on the one hand, to identified individuals, with those on the other hand, to the public at large or to a section thereof (202 CLR at 84-85 [100]-[101]). In the former case a nexus may be easier to find because of the availability of evidence of the context in which the representation or conduct occurred. Where the case involves the public generally or a section of it, the court, inter alia, has regard to the effect of the conduct on reasonable members of the class (202 CLR at 85 [103], 86-87 [105]). That introduces an objective standard by reference to which conduct can be assessed.
Case: China Ocean Shipping Co Ltd v PS Chellaram &amp; Co Ltd (1990) 28 NSWLR 354
Outcome: cited
When parties to a contract intend to incorporate material by reference, likewise, the Court makes an objective assessment of what was intended to be brought into the contract (e.g. China Ocean Shipping Co Ltd v PS Chellaram &amp; Co Ltd (1990) 28 NSWLR 354 at p 363B-E per Gleeson CJ, 395F per Samuels JA agreeing; Trustees Executors and Agency Co Ltd v Peters [1960] HCA 16 ; (1960) 102 CLR 537 at p 548 per Kitto J). And, when the question of a whether a term ought be implied into a contract is considered, the Courts have used the expression, in the past, whether an 'officious bystander' would have assented to the proposition that the parties intended, without expressly so stating, that the term form part of their contract: cp BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-284.
Case: E Hulton &amp; Co v Jones [1910] AC 20
Outcome: cited
In the law of torts, the law has created the 'reasonable person'. In the law of defamation, from which the notion of republication may have been sourced, the question as to whether a subsequent publication was intended by the original publisher or was a natural and probable result of providing the information in the first place is assessed objectively ( John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 350: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-366 and see as to the objective nature of the act of publication E Hulton &amp; Co v Jones [1910] AC 20).
Case: Gluckstein v Barnes [1900] AC 240
Outcome: applied
Of course, there is a difference between a claim for a visa and a statement of opinion, but in the present context it is not, in my opinion, material. As Lord Macnaghten said in Gluckstein v Barnes [1900] AC 240 at 250: '... it is a trite observation that every document as against its author must be read in the sense which it was intended to convey. And everybody knows that sometimes half truth is no better than a downright falsehood.'
Case: In re Piracy Jure Gentium [1934] AC 586
Outcome: followed
As Viscount Sankey LC said on behalf of a strong Judicial Committee in In re Piracy Jure Gentium [1934] AC 586 at 600 of attempts to be prescriptive: 'However that may be, their Lordships do not themselves propose to hazard a definition of piracy. They remember the words of M. Portalis, one of Napoleon's commissioners, who said "We have guarded against the dangerous ambition of wishing to regulate and to foresee everything ... A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic." (Quoted by Halsbury LC in Halsbury's Laws of England, Introduction, p. ccxi.)' (see too per Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [174] , [182], [183])
Case: John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346
Outcome: cited
In the law of torts, the law has created the 'reasonable person'. In the law of defamation, from which the notion of republication may have been sourced, the question as to whether a subsequent publication was intended by the original publisher or was a natural and probable result of providing the information in the first place is assessed objectively ( John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 350: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-366 and see as to the objective nature of the act of publication E Hulton &amp; Co v Jones [1910] AC 20).
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: discussed
The Minister also relied on what Gray J had said in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 and what Moore J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20] when he was dealing with the SZBMJ case. Moore J dissented in this point. 58 The Minister referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , a decision of Gray J given on 25 February 2005, some three months before the High Court decided SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. Gray J held that information in the applicant's passport given for the purposes of the original application for a protection visa to which the applicant's counsel invited reference in submissions made to the Tribunal was not excluded by s 424A(3)(b) ([2005] FCA 131 [25]). But his Honour held in respect of other information that the Tribunal had not complied with the obligations imposed by ss 424A(1) and (2) ([2005] FCA 131 [23] and [31]). Gray J ultimately concluded that as a matter of discretion the error of the Tribunal in failing to comply with its obligations under s 424A(1) did not attract the grant of relief because the appellant in that case had not revealed what submissions might have been made were he afforded an opportunity to comment ([2005] FCA 131 [35]).
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: discussed
If the Parliament had intended that merely by seeking review of the decision relevantly to refuse a protection visa put before the Tribunal the reasons for arriving at that decision as 'information' within the meaning of s 424A(3)(b) given by the applicant for review for the purpose of the application, it could have said so. The decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 proceeded on this basis, namely, that the material put by an applicant for review to the original decision maker was not, simply because a review was sought, 'information' within the exception in s 424A(3)(b) unless the applicant for review had done something more to give that 'information' to the Tribunal. That decision has stood for nearly 5 years. The question here is what more is sufficient. 36 In this, as in a number of areas of the law, I am of opinion that the question whether an applicant for review has given information for the purpose of the application within the meaning of s 424A(3)(b) when it is sought to say that he or she 'republished' something which had been provided at a different time by him or her, it is necessary to make an objective assessment as to what a reasonable person in the position of an observer of the interchange would have understood.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: followed
A conclusion of fabrication and elaboration of claims is substantively different from a finding that the Tribunal was not satisfied as to the claims. It is one thing for a body, such as the Tribunal, where the question for its decision, as here (see s 65(1) of the Act), is whether a person has satisfied it, to reach a decision on the material before it, that it is not so satisfied (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277). And in reaching such a conclusion, the body can weigh the material properly before it in accordance with its statutory functions ( Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 573: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281-282). In such a case, the decision may not necessarily be invalid if, as here, the Tribunal considered other material together with what the appellant had given it and, without complying with s 424A, was still not satisfied that he had made out his claim. This is because the reason why it was not so satisfied would be and would remain that what the appellant had 'given' it was insufficient. The extra material would not be a reason or a part of the reason for that state of mind since it did not affect it.
Case: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
Section 430 of the Act requires the Tribunal, in making a decision on a review, to set out 'the reasons for the decision' (see esp s. 430(1)(b)). As McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] that provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 422-423 [65] : '... the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.'