mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Outcome: followed
The starting point for consideration of the appellant's arguments seem to me to be conveniently addressed in a decision of a Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] to [47]. The Full Court there observed that: It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. 29 Their Honours pointed out that there is a distinction between the tribunal failing to advert to evidence which, if accepted, might lead to a different finding, and a failure by a tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason. Their Honours observed at [47] that the "inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons". However, that is an inference which will not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 30 It is therefore important to note, as I have already pointed out, that the Tribunal expressly recorded the appellant's adviser's post hearing submissions which stated that the factors relied upon by the appellant may not of themselves amount to a claim for asylum but that cumulatively they created a profile of an imputed association with Falun Gong. It seems to me to follow from this and also from the lengthy statement of the appellant's claims in the Tribunal that the reasons given by the Tribunal must be read in light of those two factors; that is to say the issue which the appellant now seeks to agitate was expressly referred to by the Tribunal before it gave its findings and reasons, and the findings are therefore to be informed by that fact. 37 I reject the submission put by counsel for the appellant that the Tribunal failed to address a contention. I do not think the appellant's argument is supported by what was said in Applicant WAEE at [44]. The present case falls for consideration upon a fair reading of all of the reasons of the Tribunal. I have already given my views on that question. 38 In my view it follows that the orders to be made are that the appeal be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 27 November 2006 Counsel for the Appellant: J F Gormly Counsel for the Respondent: J Potts Solicitor for the Respondent: Clayton Utz Date of Hearing: 27 November 2006 Date of Judgment: 27 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1706.html
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: referred to
The grounds of review which the appellant seeks to raise in her amended notice of appeal do not appear on their face to be within the grounds that were raised before the Federal Magistrate. However, I think it is arguable that they fell within the unreasonableness ground and, in any event, counsel for the Minister disclaimed any prejudice to the Minister by the raising of these grounds on appeal. Accordingly, applying the principles stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] to [48], I would be prepared to grant leave to the appellant to raise the grounds on the appeal. That, of course, is not to say that amended grounds could be raised on appeal if the principles referred to by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8 are infringed.
Case: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088
Outcome: referred to
The principles relied upon by the appellant were stated by the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [24] and [95].
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Outcome: cited
The principle is that there will be jurisdictional error if the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying on established facts". This may amount to a constructive failure to exercise jurisdiction. This principle was referred to by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] . The court also referred at [57] to the nature of the review function as described by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; this is that the tribunal is to consider all of the component integers of the appellant's claim.
Case: Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263
Outcome: followed
The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401. That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48]. Kaur was a case in which it was argued that the tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight. His Honour accepted that this may amount to constructive failure to exercise jurisdiction. His Honour cited a number of authorities in support of that proposition. 36 In my view the present case falls within the approach taken by Finkelstein J in Jegatheeswaran at [49]. His Honour observed that the separate treatment of the incident relied on in that case did not indicate that the tribunal failed to look at the case in its entirety. His Honour remarked that the tribunal stated that it reached its conclusion "[h]aving considered the evidence as a whole" and that there was no reason to doubt the statement. In my view that is apt in the present case. Sundberg J agreed with the reasons given by Finkelstein J. The reasons of Emmett J at [23] are also consistent with this approach.
Case: Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401
Outcome: referred to
The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401. That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48]. Kaur was a case in which it was argued that the tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight. His Honour accepted that this may amount to constructive failure to exercise jurisdiction. His Honour cited a number of authorities in support of that proposition. 35 However, in the present case, for the three reasons that I have mentioned above, I consider that the Tribunal dealt with all of the integers of the claim and that the facts put forward to support the profile were considered cumulatively. Indeed, that was the view which was eventually reached by Moore J in Kaur at [13] to [15]. It seems to me that the reasons given by the tribunal in Kaur pointed more strongly in the direction of a compartmentalised consideration of the claims than appears in the present case.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
The principle is that there will be jurisdictional error if the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying on established facts". This may amount to a constructive failure to exercise jurisdiction. This principle was referred to by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] . The court also referred at [57] to the nature of the review function as described by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; this is that the tribunal is to consider all of the component integers of the appellant's claim.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: followed
The grounds of review which the appellant seeks to raise in her amended notice of appeal do not appear on their face to be within the grounds that were raised before the Federal Magistrate. However, I think it is arguable that they fell within the unreasonableness ground and, in any event, counsel for the Minister disclaimed any prejudice to the Minister by the raising of these grounds on appeal. Accordingly, applying the principles stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] to [48], I would be prepared to grant leave to the appellant to raise the grounds on the appeal. That, of course, is not to say that amended grounds could be raised on appeal if the principles referred to by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8 are infringed.
Case: Daniel v Western Australia [1999] FCA 1541 ; (1999) 94 FCR 537
Outcome: considered
For completeness reference might also be made to a decision given in this Court's original jurisdiction by R.D. Nicholson J, Daniel v Western Australia [1999] FCA 1541 ; (1999) 94 FCR 537 at 541 - 542 in para 25 and para 26, his Honour observed: The communications in issue are principally communications from some of the first applicants. As I have said, however, there are possibly some communications from the second applicants and the third applicants and I've already stated that in the event of these being identified, if a privilege is found to exist, those parties should be given the opportunity to decide whether to make a claim and support it with argument. If there are communications to Mr Robinson by persons other than any of the applicants, that is persons other than any client, there is no basis for a client based privilege.
Case: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: considered
In Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 59, para 16, Gleeson CJ and Gaudron and Gummow JJ observed of these sections as follows in their joint judgment: Those sections appear in chapter 3 (sections 55 to 139 ) of the Act which, say for presently immaterial exceptions, is concerned with the admissibility of evidence. This limitation in the language of the statutory provisions was noted and was essential to the decision of this Court in Northern Territory v GPAO. The explanation of the wording of the Act is set out above. The statutory language is clear. It deals with the adducing of evidence. That would cover adducing evidence in interlocutory proceedings as well as at a final hearing or on an appeal but it does not cover all the circumstances in which a claim for privilege might arise. To take the most obvious example, it would not cover the circumstances considered in Baker v Campbell. 13 Neither, for the reasons given in para 59, does it cover the situation in respect of documents which are produced on subpoena, save in that circumstance when such a document is sought to be adduced in evidence. That is not this case at the present. That is not to say that documents produced on subpoena may not be the subject of a claim by a party entitled to claim legal professional privilege, but the foundation for such a claim must be that privilege as it is known at common law, not as provided for in s 118 and s 119 of the Evidence Act 1995 . 14 Granitgard has challenged the claim made by Termicide insofar as the claim relates to communications between third parties, in other words, where the documents did not emanate either from the Respondents or its lawyers. Three particular types or class of document have been identified by way of example: 1. documents produced by Dr French as referred to in Termicide's solicitor's letter dated 31 July 2008, being communications passing between Dr French and Dr Ahmed; 2. documents produced by Dr Ahmed as referred to in Termicide's solicitor's letter dated 31 July 2008, being communications passing between Dr Ahmed and Dr French; and 3. documents produced by a Mr Langley as referred to in Termicide's solicitor's letter dated 20 August 2008, being communications passing between "experts". 25 Though reported in the authorised reports in 1999, the Interchase case was decided in 1997, that is prior to the decision of the High Court in Esso Australia Resources Limited v Commissioner of Taxation . Thus, that explains the reference by their Honours to a sole purpose test. The later decided Esso Australia Resources case holds that for Australia the test at common law for legal professional privilege in relation to documents is whether a communication was made or a document was prepared for the dominant purpose of a lawyer providing legal advice or legal services. Subject to that necessary qualification, the discussion of principle in the Interchase case is compelling.
Case: CBFC Ltd v Sim [2006] NTSC 57
Outcome: considered
3 August 2006, reasons for the orders made on 10 July 2006 were published: CBFC Ltd v Sim [2006] NTSC 57. This application under s 60(1) of the Bankruptcy Act was made immediately following the learned Supreme Court judge delivering reasons for the orders made on 10 July 2006. It seeks a stay of the proceedings in the NTSC, and a discharge of the orders made on 10 July 2006 including the warrant for Mr Sim's arrest. Section 60 of the Bankruptcy Act relevantly provides: '60(1) The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit: (a) discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or (b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor: (i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; ...'
Case: Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549
Outcome: referred to
there is extant a creditor's petition for the making of a sequestration order against the estate of Mr Sim, there is no doubt that the Court has jurisdiction under s 60 of the Bankruptcy Act : see Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549. In my view the Absconding Debtors Act is a law to which s 60(1)(a) of the Bankruptcy Act refers. In my view, s 60 is directed to legislation which is intended to protect a creditor or creditors within a particular jurisdiction from adverse consequences of a debtor leaving the jurisdiction prior, or after, to the making of a sequestration order. Section 4(3)(c) of the Absconding Debtors Act indicates that the Absconding Debtors Act falls within that description. Those consequences may be the result of deliberate wrongful conduct by the debtor, or (as here) by innocent conduct of the debtor. The purpose of the law under which imprisonment may be imposed is the important feature, because s 60 is intended to provide relief in certain circumstances against the means of enforcement of a debt which is not consistent with the Bankruptcy Act: see Storey v Lane .
Case: Commissioner for Motor Transport v Train [1972] HCA 62 ; (1972) 127 CLR 396
Outcome: considered
consequence of that decision was that the decision of Gibbs J (as a judge of the Court of Bankruptcy) in Re Hollis (1968) 15 FLR 386 was overruled. That decision concerned the Road Act. That it was overruled is not immediately significant. What is significant in that decision, in my view, are comments of Gibbs J about the operation of the then form of s 60(1) of the Bankruptcy Act. His Honour at 388-389 regarded s 60(1) as being directed to legislation which, by imprisonment and other orders, was a means of enforcing the payment of the debt. See also per Gibbs J in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 at 158. I do not think that either Barwick CJ or Stephen J in Train necessarily disagreed with those comments. They provide a different focus for determining whether the Absconding Debtors Act is a law relating to the imprisonment of fraudulent debtors. The Absconding Debtors Act is clearly directed to the enforcement, or the better enforcement, of the payment of a debt. It is perhaps surprising that legislation permits the issue of a warrant to arrest a debtor, to better secure the enforcement of a debt in the light of the trend evident even in the nineteenth century to abolish the practice of enforcement of payment of debt by imprisonment. The review of Australian legislation by Walsh J in Train indicates that trend. See also per Barwick CJ in Train at 402. The general approach of Gibbs J in Re Hollis to the scope of operation of s 60(1) of the Bankruptcy Act seems more consonant with its purposes, and with the role of the Bankruptcy Act as regulating the relations between a creditor and a debtor once the processes for which it provides are invoked.
Case: Re Hollis (1968) 15 FLR 386
Outcome: discussed
consequence of that decision was that the decision of Gibbs J (as a judge of the Court of Bankruptcy) in Re Hollis (1968) 15 FLR 386 was overruled. That decision concerned the Road Act. That it was overruled is not immediately significant. What is significant in that decision, in my view, are comments of Gibbs J about the operation of the then form of s 60(1) of the Bankruptcy Act. His Honour at 388-389 regarded s 60(1) as being directed to legislation which, by imprisonment and other orders, was a means of enforcing the payment of the debt. See also per Gibbs J in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 at 158. I do not think that either Barwick CJ or Stephen J in Train necessarily disagreed with those comments. They provide a different focus for determining whether the Absconding Debtors Act is a law relating to the imprisonment of fraudulent debtors. The Absconding Debtors Act is clearly directed to the enforcement, or the better enforcement, of the payment of a debt. It is perhaps surprising that legislation permits the issue of a warrant to arrest a debtor, to better secure the enforcement of a debt in the light of the trend evident even in the nineteenth century to abolish the practice of enforcement of payment of debt by imprisonment. The review of Australian legislation by Walsh J in Train indicates that trend. See also per Barwick CJ in Train at 402. The general approach of Gibbs J in Re Hollis to the scope of operation of s 60(1) of the Bankruptcy Act seems more consonant with its purposes, and with the role of the Bankruptcy Act as regulating the relations between a creditor and a debtor once the processes for which it provides are invoked.
Case: Re Caddies; Ex parte Stapleton (1962) 19 ABC 155
Outcome: referred to
consequence of that decision was that the decision of Gibbs J (as a judge of the Court of Bankruptcy) in Re Hollis (1968) 15 FLR 386 was overruled. That decision concerned the Road Act. That it was overruled is not immediately significant. What is significant in that decision, in my view, are comments of Gibbs J about the operation of the then form of s 60(1) of the Bankruptcy Act. His Honour at 388-389 regarded s 60(1) as being directed to legislation which, by imprisonment and other orders, was a means of enforcing the payment of the debt. See also per Gibbs J in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 at 158. I do not think that either Barwick CJ or Stephen J in Train necessarily disagreed with those comments. They provide a different focus for determining whether the Absconding Debtors Act is a law relating to the imprisonment of fraudulent debtors.
Case: Pitt, Son &amp; Badgery Ltd v Municipal Council of Sydney (1907) 24 WN (NSW) 203
Outcome: cited
Absconding Debtors Act has the long title 'An Act to make Provision for and in respect of the Apprehension of Certain Debtors'. In my view, that is a factor to which regard may be had in determining whether it is legislation which has the character attracted by s 60(1)(a) of the Bankruptcy Act: see Pitt, Son &amp; Badgery Ltd v Municipal Council of Sydney (1907) 24 WN (NSW) 203 at 204 per Street J; Clunies-Ross v Commonwealth [1984] HCA 65 ; (1984) 155 CLR 193 at 199; Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12 ; (1993) 176 CLR 555 at 563.
Case: Clunies-Ross v Commonwealth [1984] HCA 65 ; (1984) 155 CLR 193
Outcome: cited
Absconding Debtors Act has the long title 'An Act to make Provision for and in respect of the Apprehension of Certain Debtors'. In my view, that is a factor to which regard may be had in determining whether it is legislation which has the character attracted by s 60(1)(a) of the Bankruptcy Act: see Pitt, Son &amp; Badgery Ltd v Municipal Council of Sydney (1907) 24 WN (NSW) 203 at 204 per Street J; Clunies-Ross v Commonwealth [1984] HCA 65 ; (1984) 155 CLR 193 at 199; Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12 ; (1993) 176 CLR 555 at 563.
Case: Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12 ; (1993) 176 CLR 555
Outcome: cited
Absconding Debtors Act has the long title 'An Act to make Provision for and in respect of the Apprehension of Certain Debtors'. In my view, that is a factor to which regard may be had in determining whether it is legislation which has the character attracted by s 60(1)(a) of the Bankruptcy Act: see Pitt, Son &amp; Badgery Ltd v Municipal Council of Sydney (1907) 24 WN (NSW) 203 at 204 per Street J; Clunies-Ross v Commonwealth [1984] HCA 65 ; (1984) 155 CLR 193 at 199; Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12 ; (1993) 176 CLR 555 at 563.
Case: Malouf v Prentice [1998] FCA 1427
Outcome: referred to
importantly, I consider his initial imprisonment in Australia, and then his forced residence in the Territory, are not consistent with the policy of the Bankruptcy Act. Its policy in relation to such matters is indicated by s 78 (referred to above), and the learned judge found that Mr Sim's desire to return to Indonesia was not with a view to avoiding payment of his debts but for legitimate purposes. See also s 272 of the Bankruptcy Act. I note that, if a sequestration order is made, a bankrupt must then surrender his or her passport to the trustee: s 77. Permission to travel overseas from the trustee then becomes necessary. A decision of the trustee on such a matter is reviewable. In Malouf v Prentice [1998] FCA 1427 Sackville J said the withholding of permission to travel for apparently legitimate purposes should not be lightly exercised. In Re Tyndall (1977) 17 ALR 182, Deane J at 187 and 190 referred to the 'fundamental importance' of such applications for permission to travel overseas to pursue legitimate commercial or personal desires; and also in some cases to the financial rewards to be derived by the bankrupt's estate.