mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pillai v Comptroller of Income Tax [1970] AC 1124
Outcome: referred to
A bankruptcy notice is clearly a notice under the Act; however, contrary to the submission of the respondent, it is not a proceeding under the Act. It is the issue of a bankruptcy notice which is a proceeding under the Act: Pillai v Comptroller of Income Tax [1970] AC 1124 at 1131; quoted with approval in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 at 77 per Mason CJ, Wilson, Brennan and Gaudron JJ. 33 In Kleinwort Benson 165 CLR at 79, 80, Mason CJ, Wilson, Brennan and Gaudron JJ said: The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v Federal Commissioner of Taxation [1955] HCA 75 ; [(1955) 93 CLR 631 at 644]; Pillai [[1970] AC 1124 at 1135]. In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of 1908 [[1908] 2 KB 474 at 481].
Case: Walsh v Deputy Federal Commissioner of Taxation [1984] HCA 33 ; (1984) 156 CLR 337
Outcome: referred to
In Seovic 87 FCR, the Full Court ultimately held that the letter of 25 May 1998 from the debtor's solicitors to the creditor's solicitors did not constitute a notice within the meaning of s 41(5) of the Act. Nevertheless, they considered the effect of a debtor's notice under s 41(5) of the Act and made the following observations: [49] We have observed that s 41(5) of the Bankruptcy Act appears to be drafted on the assumption that a bankruptcy notice is liable to be "invalidated" if the sum specified in the notice exceeds the amount in fact due to the creditor. In Re Walsh [(1982) 47 ALR 751] , Lockhart J challenged this assumption, by holding that under the Bankruptcy Act, an over-statement of the amount due by the debtor does not necessarily vitiate the bankruptcy notice. His Honour considered ... that the bankruptcy notice would be avoided only if the over-statement could reasonably mislead the debtor. He said he would decline to follow Re a Debtor and Re Prossimo if they stood in the way of this conclusion. [50] In Re Greenhill; Ex parte Myer (NSW) Ltd (1984) 5 FCR 84 , Morling J declined to follow Re Walsh and held that an over-statement in a bankruptcy of the amount actually due renders the notice invalid, whether or not the over-statement could reasonably mislead the debtor. Morling J considered that observations by the High Court in Walsh v Deputy Commissioner of Taxation [1984] HCA 33 ; [(1984) 156 CLR 337] ... were inconsistent with Lockhart J's analysis. A similar view was subsequently taken by Pincus J in Re Emerson; Ex parte Wreckair Pty Ltd (1991) 101 ALR 315 at 318-319 (affirmed on other grounds: Emerson v Wreckair Pty Ltd [1992] FCA 16 ; (1992) 33 FCR 581 (FC)). [51] We have acted on the assumption, not challenged by either party, that Re Greenhill and Re Emerson correctly state the law. However, our view would not be changed if Lockhart J's decision in Re Walsh were ultimately found to be correct (as to which we express no view). 24 That assumption is supported by the observation, albeit obiter , of Gibbs CJ in Walsh v Deputy Federal Commissioner of Taxation [1984] HCA 33 ; (1984) 156 CLR 337 at 339: There is no doubt that a bankruptcy notice will be invalid if the sum specified in the notice as the amount due to the creditor exceeds the amount for which the creditor is entitled to issue execution, provided that the debtor gives timely notice under s. 41(5) of the Bankruptcy Act 1966 (Cth), as amended, that he disputes the validity of the notice on that ground. with whom Mason, Brennan, Deane and Dawson JJ agreed. 25 It is important, in my view, that the section uses the word 'unless' and not 'until'. In other words, invalidity of the bankruptcy notice does not only run from the time of the giving of the s 41(5) notice; once a s 41(5) notice is given, invalidity is visited upon the bankruptcy notice from the time of its issue.
Case: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408
Outcome: referred to
In developing that submission, Mr Horan argued that the concept of onus of proof has no place in administrative proceedings, such as those conducted by the MRT. He referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 (" McDonald ") at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 ; (1999) 86 FCR 567 at [35] per Merkel J, with whom Carr J agreed; and Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 424-5 per Brennan J. He submitted that such proceedings are not adversarial in nature. The MRT is an inquisitorial body which has powers to make inquiries and to obtain additional information. It is not a curial body that decides cases in accordance with principles of evidence, or by determining the incidence of the burden of proof.
Case: Cakmak v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 503
Outcome: referred to
The MRT noted that the provisions of Div 1 had been extensively considered by the Federal Court, and that the Division had been described variously as "a deeming mechanism": Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 ; (2002) 117 FCR 251 (" Meroka ") at [5]; a "triumph of form over substance": Ibrahim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1279 (" Ibrahim ") at [40]; and as a "mechanical mode of proof": Cakmak v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 503 at [40] .
Case: Du v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1115
Outcome: considered
Ms Riley also referred to Du v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1115 , where Mathews J said at [18]-[19]: "The Regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these Regulations for a competent person simply to note the consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person. This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. None of this has been complied with here." 75 Finally, Ms Riley referred to Alin v Minister for Immigration and Multicultural Affairs [2002] FCA 979 at [13] where Sundberg J indicated that he agreed with what Mathews J had said in Du . His Honour said, at [12], that the statutory declarations under consideration in Alin did not satisfy the Regulations because they made "no reference to the applicant's state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety", that being a component of the definition of "relevant domestic violence" in reg 1.23(2)(b). 78 In these circumstances, and relying upon both Du and Alin , Ms Riley submitted that even an implicit expression of opinion, of the kind for which Mr Horan contended, would not be sufficient. The requisite opinion would have to be clearly expressed.
Case: Ibrahim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1279
Outcome: referred to
The MRT noted that the provisions of Div 1 had been extensively considered by the Federal Court, and that the Division had been described variously as "a deeming mechanism": Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 ; (2002) 117 FCR 251 (" Meroka ") at [5]; a "triumph of form over substance": Ibrahim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1279 (" Ibrahim ") at [40]; and as a "mechanical mode of proof": Cakmak v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 503 at [40] . 73 With regard to the statutory declarations, Ms Riley submitted that there was nothing implicit in them that suggested that the competent person held the opinions required under reg 1.26. She referred to Ibrahim at [40] where Wilcox J observed that if the visa applicant fails to obtain appropriate statutory declarations by the required two competent persons, the visa application has to be refused. That is so even if the decision maker is totally satisfied that the applicant has suffered domestic violence at the hands of his or her spouse. 105 Of course, once the formal requirements associated with the statutory declarations are met, the Regulations do not require or permit the MRT to come to any decision as to whether domestic violence actually took place. The scheme is one of deeming provisions, and as Wilcox J pithily observed, represents a "triumph of form over substance". 106 Ms Riley submitted that if I were to conclude that the appeal should be allowed because of what the MRT had said regarding the burden of proof, and if I were not persuaded that it would be futile to remit the matter for further consideration, it ought to be remitted to the Federal Magistrates Court, and not to the MRT. That was because the challenge to the validity of the MRT's decision, regarding the statutory declarations and the police records, had not been determined. The application for judicial review before the Federal Magistrates Court, therefore, had still to be completed. 107 I infer that it did not escape Ms Riley's attention that remittal to the Federal Magistrates Court, rather than the MRT, might preclude the appellant from seeking to rectify any defects associated with the statutory declarations by filing new ones.
Case: Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 ; (2002) 117 FCR 251
Outcome: approved
The MRT noted that the provisions of Div 1 had been extensively considered by the Federal Court, and that the Division had been described variously as "a deeming mechanism": Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 ; (2002) 117 FCR 251 (" Meroka ") at [5]; a "triumph of form over substance": Ibrahim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1279 (" Ibrahim ") at [40]; and as a "mechanical mode of proof": Cakmak v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 503 at [40] . 76 Ms Riley very properly drew attention to the observations of Ryan J in Meroka , where his Honour said at [33] and [34]: "That is not to say that the Minister (or the Tribunal) can substitute for that of the "competent person", his or its own opinion of whether domestic violence has been suffered. ... I do not consider that the competent person need state expressly that in his or her opinion relevant domestic violence has been suffered. The requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of "domestic violence" in reg 1.23(2)(b)." 77 However, she noted that in Alin , Sundberg J had distinguished Meroka on the basis that the standard form, which had been used in Meroka , had not been used in Alin . Where the standard form was not used, it was necessary, in Sundberg J's view, for the requisite opinion to be expressly stated. Ms Riley noted that the standard form had not been used in the present case. 100 The appellant's submissions regarding the statutory declarations obviously face significant hurdles. Nonetheless, an argument can be put to the effect that the MRT erred in its treatment of this issue. Much will depend upon whether the approach taken by Ryan J in Meroka , which recognises the possibility that a statutory declaration may state an opinion "implicitly", is good law. 101 In particular, the question may arise as to whether the distinction that Sundberg J drew in Alin between a statutory declaration on a form approved by the Department, which may contain implicit statements of opinions, and a declaration not in that form, which may not, is correct. It is fair to say that Sundberg J referred to the difference between the form used in Meroka , and that used in Alin , as a basis for distinguishing Meroka . However, his Honour did not explain, in any detail, why the difference in the form of the declarations used warranted a different result, at least in terms of whether an opinion could be "implicit". It is arguable that the broader and more flexible approach taken by Ryan J in Meroka was not intended to be so constrained.
Case: Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 ; (1999) 86 FCR 567
Outcome: referred to
In developing that submission, Mr Horan argued that the concept of onus of proof has no place in administrative proceedings, such as those conducted by the MRT. He referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 (" McDonald ") at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 ; (1999) 86 FCR 567 at [35] per Merkel J, with whom Carr J agreed; and Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 424-5 per Brennan J. He submitted that such proceedings are not adversarial in nature. The MRT is an inquisitorial body which has powers to make inquiries and to obtain additional information. It is not a curial body that decides cases in accordance with principles of evidence, or by determining the incidence of the burden of proof.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: applied
In accordance with the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the MRT has been joined as a respondent to this proceeding. I certify that the preceding one-hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 4 April 2006 Counsel for the Appellant: Mr C Horan Solicitor for the Appellant: Goz Chambers Lawyers Counsel for the Respondent: Ms Riley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 March 2006 Date of Judgment: 4 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/328.html
Case: Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437
Outcome: cited
purpose of a provision such as s 420(2) was explained by Gummow and Heydon JJ, with whose reasons Gleeson CJ agreed, in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [56] ('Applicant S154/2002 ') as follows: '[56] ... The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.' The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which, relevantly, for present purposes, provides as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse ... of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.' The Refugees Convention means the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, and the Refugees Protocol means the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as 'the Convention.'
Case: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Outcome: referred to
satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 ; (1999) 93 FCR 220 ('Rajalingam') refer to the 'civil standard of proof' being not irrelevant to the process of fact-finding by the Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212 ('Kalala') refer to the Tribunal being obliged to consider matters on 'a standard less than the balance of probabilities' (see at [25]). I doubt the utility of addressing matters on which the Tribunal has to be 'satisfied' by a standard which is related to the standard of proof required in adversarial civil litigation.
Case: Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212
Outcome: referred to
satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 ; (1999) 93 FCR 220 ('Rajalingam') refer to the 'civil standard of proof' being not irrelevant to the process of fact-finding by the Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212 ('Kalala') refer to the Tribunal being obliged to consider matters on 'a standard less than the balance of probabilities' (see at [25]). I doubt the utility of addressing matters on which the Tribunal has to be 'satisfied' by a standard which is related to the standard of proof required in adversarial civil litigation.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Outcome: referred to
has been said many times, proceedings in the Tribunal are not adversarial, but, rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 at [40] ). The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal, and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Applicant S154/2002 at [57] [58]).
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Outcome: cited
fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [48] ).
Case: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1
Outcome: cited
requirements of s 91R(1) of the Act provide a manifestation of a statutory intent to define persecution, and therefore serious harm, in strict and perhaps narrower terms than an unqualified reading of any unadapted Art 1A(2) of the Convention might otherwise require. The section is not concerned exclusively with or applicable to events in the past, rather than current or future circumstances. The Convention is framed to ensure that persons will not be exposed to persecution, as defined by Australian law, if they were to return to the country which they have left. If any threat or relevant risk is not current or prospective, then there can be no well-founded fear of persecution (per Callinan and Heydon JJ in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 233 CLR 1 ('VBAO') at [49]-[50]). The word 'threat' as used in s 91R(2)(a) of the Act connotes 'risk' in the sense of danger or hazard (per Gummow J in VBAO at [18]). It is indicative of a likelihood of harm (per Gleeson CJ and Kirby J in VBAO at [1] and [3]).
Case: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Outcome: cited
definition of 'refugee' in the Convention is couched in the present tense, and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example, by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; [2007] 233 CLR 18 ('SZATV') at [16]). The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]).