mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
For my own part, and conscious of the frame of mind to be brought to bear by a reviewing court in judicial review proceedings: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272; I am satisfied that on a fair reading of the Tribunal's decision it cannot fairly be said to have misapprehended and thus misapplied the test in s 24(2)(a)(i) of the VE Act. There can be no doubt that the Tribunal understood and asked itself the question required to be asked when considering whether in the circumstances a veteran ceased to engage in remunerative work for reasons other than his war-caused incapacity and disease. As the respondent correctly contends, the Tribunal addressed the evidence both medical and of Mr Cadd that related to that question. In light (i) of the events which occurred since he ceased to have remunerative work in February 2003, ie his persistent inability to get work; (ii) of his medical condition at February 2003 until the onset of PTSD in 2004; and (iii) of his own appreciation, albeit for the most part in retrospect, of his fitness for work (but compare his 18 March 2003 application noted by the Tribunal (at [13] of its reasons)), the conclusion that Mr Cadd ceased to engage in remunerative work for a reason other than incapacity from war-caused condition was one that clearly was open to it. 16 I accept, as I earlier indicated, that the reasons given for this conclusion were economically expressed but they are discernible. At best the appeal seeks a review on the merits of the Tribunal's decision. Such is not permissible. 17 I will order that the application be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 8 July 2008 Counsel for the Applicant: Mr N Swan Solicitor for the Applicant: Swan Lawyers Counsel for the Respondent: Ms S Maharaj QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 June 2008 Date of Judgment: 8 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1024.html
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
In relation to the first alleged ground of jurisdictional error, the appellant invoked generally the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, and in particular what was said by the High Court at [68] (McHugh J), and thereafter in the reasons for judgment of a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, and in particular what was emphasised by Allsop J at [216]. However the appellant did not invoke specifically or with precision the operation of the process required by s 424A(1) in the circumstances of this case, assuming that any such course was open for adoption. In that regard as Allsop J emphasised in the passage above cited, '[o]ne always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations', and further that '[t]he whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did...' . Those tasks were not undertaken by the appellant on the present appeal with precision or at all.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: referred to
In relation to the first alleged ground of jurisdictional error, the appellant invoked generally the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, and in particular what was said by the High Court at [68] (McHugh J), and thereafter in the reasons for judgment of a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, and in particular what was emphasised by Allsop J at [216]. However the appellant did not invoke specifically or with precision the operation of the process required by s 424A(1) in the circumstances of this case, assuming that any such course was open for adoption. In that regard as Allsop J emphasised in the passage above cited, '[o]ne always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations', and further that '[t]he whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did...' . Those tasks were not undertaken by the appellant on the present appeal with precision or at all.
Case: Amrit Lal Narain v Parnell (1986) 9 FCR 479
Outcome: followed
It is not considered that s 78B(1) imposes any constraint upon this Court now determining the application for leave to appeal. Section 78B " contemplates ... a constitutional question which is a live issue in the proceedings ": Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489 per Burchett J. The section " does not impose a duty on the Court not to proceed pending the issue of notices to the Attorneys-General in every case in which the Constitution is mentioned " or in which a principle arising under the Constitution is asserted by a party: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103] , [2004] FCA 918 ; 56 ATR 371 at 396, [2004] ATC 4779 per French J. Any Constitutional issue sought to be raised by the Applicant is not considered to be a " live issue " in the proceedings.
Case: Commonwealth of Australia v Lyon [2003] FCAFC 284
Outcome: followed
Rather than considering that the decision of the primary judge may be attendant with some doubt such as to warrant it being further considered on appeal, it is considered that the decision of the primary judge was clearly correct. The primary judge was clearly correct in observing in the context of s 43(1) of the Crimes Act 1914 (Cth) that " none of the Defendants appears to have been acting ' in relation to the judicial power of the Commonwealth' ." His Honour was also clearly correct in observing that this Court is a statutory court and that such jurisdiction as is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) is subject to an exception, namely jurisdiction to entertain a matter arising under a law made by the Parliament " other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter ". The expression " criminal matter " is to be given its traditional meaning: Commonwealth of Australia v Lyon [2003] FCAFC 284 at [50] , [2003] FCAFC 284 ; 133 FCR 265 at 277 8. The proceedings sought to be pursued by the " Prosecutor " clearly fell within the concluding words of s 39B(1A)(c). 8 It should further be noted that an Affidavit filed in support of the application asserts ( inter alia ) that "[t] he Judge has displayed a continual legacy of Bias " and an assertion that " The Judge has opted out of Judicial accountability by passing out risponsabilty [sic] to the fact that he refused to hear the proceedings before him in order to further pervert the course of Justice ". There is no basis for any such assertion. A litigant who is unrepresented may understandably feel a sense of disgruntlement when losing a case, being circumstances in which a legal representative is not available to explain why proceedings should never have been commenced or why an argument did not prevail; but an unrepresented litigant has no licence to make unfounded assertions. 9 At the outset of the hearing of the application for leave to appeal, the Applicant sought an adjournment of the hearing in order to enable a notice to be given pursuant to s 78B of the Judiciary Act 1903 (Cth). Section 78 provides that: (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. The Summons as filed refers to what is identified as the " Kable Principle " and further refers to "[p] erverting the Course of Justice by making representations not specifically defined in the Crimes Act 1914 (Cth) in respect of the Judicial Power of the Commonwealth ".
Case: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918
Outcome: followed
It is not considered that s 78B(1) imposes any constraint upon this Court now determining the application for leave to appeal. Section 78B " contemplates ... a constitutional question which is a live issue in the proceedings ": Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489 per Burchett J. The section " does not impose a duty on the Court not to proceed pending the issue of notices to the Attorneys-General in every case in which the Constitution is mentioned " or in which a principle arising under the Constitution is asserted by a party: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103] , [2004] FCA 918 ; 56 ATR 371 at 396, [2004] ATC 4779 per French J. Any Constitutional issue sought to be raised by the Applicant is not considered to be a " live issue " in the proceedings.
Case: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: followed
The discretion conferred by s 24(1A) is an " unfettered discretion " and is in " unqualified terms ": Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399. Relevant to the exercise of the discretion, however, is whether the decision of the primary judge is attendant with sufficient doubt to warrant it being considered on appeal and whether substantial injustice would result if leave were refused.
Case: Mentyn v Westpac Banking Corporation [2004] FCAFC 149
Outcome: followed
The application presently before the Court is a Notice of Motion seeking leave to appeal and was filed on 14 April 2008. Leave is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because an order for the dismissal of proceedings for want of jurisdiction is interlocutory in character, at least where the order does not necessarily finally dispose of the rights of the parties: Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [3] . Whatever other rights the present Applicant may have as against the " Defendants " remain and are not affected by the decision now in issue.
Case: Vescio v Honourable John Hatzistergos (NSW Attorney General) [2008] FCA 332
Outcome: cited
On 13 March 2008 a judge of this Court dismissed proceedings commenced by the present Applicant: Vescio v Honourable John Hatzistergos (NSW Attorney General) [2008] FCA 332. 2 Those proceedings were commenced by the present Applicant as " Prosecutor ". The " Defendants " included members of the Parliament of New South Wales, the President of the New South Wales Guardianship Tribunal, the Protective Commissioner, the New South Wales Public Guardian and the Public Guardian Regional Officer. 3 The " Prosecutor " alleged that acts by some or all of the " Defendants " perverted the course of justice and constituted offences under s 43(1) of the Crimes Act 1914 (Cth). That subsection provides as follows: (1) Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.
Case: Australian Prudential Regulation Authority v David Robert Siminton (No 4) [2006] FCA 1339
Outcome: affirmed
J ordered that Mr Siminton's application be dismissed with costs on 6 October 2006. His Honour gave reasons for that decision in the form of a "ruling" delivered on that same day: Australian Prudential Regulation Authority v David Robert Siminton (No 4) [2006] FCA 1339. He noted that a number of the matters raised by Mr Siminton had been agitated before another judge of this Court, Merkel J, earlier this year: Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336. However, Tracey J also noted that Mr Siminton had raised what his Honour described as a "novel complaint", namely that the proceeding had been brought unconstitutionally because it was said to provide for the acquisition of Mr Siminton's property by APRA, or the Commonwealth, without just terms.
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
principles upon which leave to appeal from an interlocutory judgment will be granted are clear. They are set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
Case: SAAP v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 228 CLR 294
Outcome: followed
First, the " certain adverse information used by the Tribunal " has not been identified. The proceedings before the Tribunal did not involve, as do many applications for review, an assessment of competing accounts of factual events. The Tribunal in the present proceedings had limited information available to it and, recognising that there was no onus of proof upon the now Appellants, simply concluded that: ...The information that the first named applicant has submitted does not provide the necessary detail for the Tribunal to be satisfied as to the veracity of his claims or that he has a well founded fear of persecution. Section 424A , it may be accepted, imposes a mandatory requirement: SAAP v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, [2005] HCA 24 ; 228 CLR 294. But no breach can be established unless the particular " information " which it is claimed needs to be the subject of an invitation to comment upon or respond to can be first identified. 10 The First Appellant appeared unrepresented before this Court this morning but did have the benefit of an interpreter. Other than expressing a desire to stay longer in Australia, he provided no assistance as to the " certain adverse information " to which his Notice of Appeal refers. Indeed, it was unclear whether the complaint was directed to the use of information already provided or whether the complaint was more directed to the lack of an opportunity to provide further information. If the latter, it is considered that adequate opportunity has already been extended in which to provide information. 11 Second, the " information " considered by the Tribunal and the " information " which it ultimately considered did not make out the Applicant's case was that in fact supplied by the Applicant. Such " information " is not " information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review " within the meaning of s 424A(1)(a).
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 , 235 ALR 609
Outcome: followed
The contents of such " information ", as was observed in SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [17] , [2007] FCA 26 ; 235 ALR 609 at 615 by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, " if ... believed ... would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review ." Moreover, it was the inadequacy of the materials provided by the now Appellants that was the " reason " for the Tribunal's decision. Where it is the Tribunal's " disbelief of the appellant's evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1) ": SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616.
Case: SZEFM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 78
Outcome: followed
No question of any breach of s 424A , in such circumstances, arises for resolution: SZIDH v Minister for Immigration &amp; Citizenship [2007] FCA 369. In the present case, as in SZEFM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 78: [23] ...the Tribunal was identifying the deficiencies or inadequacies in the appellant's case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1)....
Case: SZEZI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1195
Outcome: followed
As in SZEZI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1195 the applicant for the visa did not attend before the Tribunal, despite an invitation to do so. Allsop J there concluded: [29] ...The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason. The same comment may be made in the present appeal. 16 The appeal should thus be dismissed. 17 The orders of the Court are: 1. Appeal dismissed. 2. The Appellants to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 3 March 2008 The First Appellant: Self-represented Solicitor for the Respondent: M Mafessanti (Clayton Utz) Date of Hearing: 3 March 2008 Date of Judgment: 3 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/210.html
Case: SZIDH v Minister for Immigration &amp; Citizenship [2007] FCA 369
Outcome: followed
No question of any breach of s 424A , in such circumstances, arises for resolution: SZIDH v Minister for Immigration &amp; Citizenship [2007] FCA 369. In the present case, as in SZEFM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 78: [23] ...the Tribunal was identifying the deficiencies or inadequacies in the appellant's case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1)....
Case: Kim v Witton (1995) 59 FCR 258 
Outcome: cited
Her Honour described the application as no more than an application seeking merits review, and as one not disclosing any jurisdictional error on the part of the Tribunal. She said that the findings of the Tribunal that there had been a breach of Condition 8101 were open to the Tribunal, by a combination of what the applicant said he had been doing and what he had said to the delegate, so that the activity at Stonemasons was one that normally attracts reimbursement (cf Kim v Witton (1995) 59 FCR 258 at 268). Her Honour also concluded that the Tribunal's finding that the reasons for not cancelling the visa did not outweigh the reason for cancelling the visa was open to it on the material before it. 27 Consequently, the Tribunal decision was not infected by jurisdictional error and the application to the Federal Magistrates Court was dismissed. 28 The present application is supported by an affidavit of the applicant to which is annexed proposed grounds of appeal. There is substantial overlap in what is said in each of those documents.
Case: Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71
Outcome: considered
In Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71, Gray J at 90-92 addressed the question whether the decision-maker in exercising the discretion under s 116(1) of the Act was bound to comply with the directions in a Migration Series Instruction. His Honour in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43 , in a different factual context, decided that the prescriptions in a Policy Advice Manual published also under s 499 of the Act were not binding, and so were not relevant considerations to a decision-maker as that expression is explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. By reason of the decision in Sandoval , I think it is arguable that at least the primary considerations in the Migration Series Manual referred to at [16] above were required to be addressed by the Tribunal.
Case: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43
Outcome: considered
In Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71, Gray J at 90-92 addressed the question whether the decision-maker in exercising the discretion under s 116(1) of the Act was bound to comply with the directions in a Migration Series Instruction. His Honour in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43 , in a different factual context, decided that the prescriptions in a Policy Advice Manual published also under s 499 of the Act were not binding, and so were not relevant considerations to a decision-maker as that expression is explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. By reason of the decision in Sandoval , I think it is arguable that at least the primary considerations in the Migration Series Manual referred to at [16] above were required to be addressed by the Tribunal.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
In Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71, Gray J at 90-92 addressed the question whether the decision-maker in exercising the discretion under s 116(1) of the Act was bound to comply with the directions in a Migration Series Instruction. His Honour in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43 , in a different factual context, decided that the prescriptions in a Policy Advice Manual published also under s 499 of the Act were not binding, and so were not relevant considerations to a decision-maker as that expression is explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. By reason of the decision in Sandoval , I think it is arguable that at least the primary considerations in the Migration Series Manual referred to at [16] above were required to be addressed by the Tribunal.