mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: distinguished
The appellants argued that the tribunal had ignored or failed to consider DFAT report 404 because it gave no reasons or source for the finding that there had been a "considerable relaxation of the one child policy in Fujian Provence" when DFAT report 404 suggested that the policy was strictly enforced. The tribunal was actually aware of that report since it referred to material in it for other purposes on the same page of its reasons. Her Honour held that the tribunal's finding of a "considerable relaxation" was consistent with the 2002 Home Office Country Report: SZJTQ [2008] FMCA 1188 at [51] . The trial judge said that the tribunal was entitled to form its own views as to the accuracy and weight of country information, relying on NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 440 [81] per Young J with whom Gyles and Stone JJ agreed. Young J had said that it was not for the Court to reconsider the tribunal's factual findings as to an applicant's claims and what country information was relevant to the tribunal in determining whether those claims gave rise to a well-founded fear of persecution.
Case: Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390
Outcome: cited
The principle identified by Mason J requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes this duty: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ with whom Brennan CJ, Dawson and Toohey JJ agreed on this issue at 609; see also Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 at 400 [42] per Kirby J.
Case: Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113
Outcome: cited
The Minister argued that the appellants' complaint on this ground amounted to, in effect, a failure to give sufficient weight to the information contained in DFAT report 404. He relied on the reasoning on VWFW [2006] FCAFC 29 at [73] . He contended that the mere failure of the tribunal to refer to a piece of evidence which the Court thinks relevant does not, of itself, lead to the conclusion that the tribunal failed to take into account the relevant consideration: see Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 at [27] - [29] per Jacobson J.
Case: SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
I consider that in Peko-Wallsend 162 CLR at 45, Mason J stated a principle of law generally applicable to administrative decision making, not a mere practice. Legislation may exclude the applicability of the principles of administrative law, as s 422B of the Act does in reducing the scope of the operation of the principles of procedural fairness or the rules of natural justice. But, the fundamental importance of these principles, as applied by the relevant statutory scheme in which they operate, is to ensure that a decision is arrived at lawfully; i.e. in the manner authorised by the Parliament: SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at 160-161 [25] - [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. A departure from the procedure mandated by law, ordinarily will lead to the Court setting aside the decision because the decision-maker acts outside the power and authority conferred by the legislation. However, the Court retains a discretion to withhold constitutional writ relief if the departure from the proper procedure would make no difference to the result, or some other recognised ground for exercising the discretion is present: SZBYR v Minister for Immigration &amp; Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] - [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
I consider that in Peko-Wallsend 162 CLR at 45, Mason J stated a principle of law generally applicable to administrative decision making, not a mere practice. Legislation may exclude the applicability of the principles of administrative law, as s 422B of the Act does in reducing the scope of the operation of the principles of procedural fairness or the rules of natural justice. But, the fundamental importance of these principles, as applied by the relevant statutory scheme in which they operate, is to ensure that a decision is arrived at lawfully; i.e. in the manner authorised by the Parliament: SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at 160-161 [25] - [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. A departure from the procedure mandated by law, ordinarily will lead to the Court setting aside the decision because the decision-maker acts outside the power and authority conferred by the legislation. However, the Court retains a discretion to withhold constitutional writ relief if the departure from the proper procedure would make no difference to the result, or some other recognised ground for exercising the discretion is present: SZBYR v Minister for Immigration &amp; Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] - [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Case: SZIGH v Minister for Immigration &amp; Citizenship [2008] FCA 1885
Outcome: distinguished
Recently, Buchanan J referred to the need for a decision maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made. He described this as an "expected practice", but in the circumstances of the matter he was deciding, he said that it was not necessary for him to consider the "expected practice ... as one in the nature of a jurisdictional imperative": SZIGH v Minister for Immigration &amp; Citizenship [2008] FCA 1885 at [34] . This was because the tribunal had disbelieved the applicant for review in that case on matters completely unrelated to the more recent country information, which could not possibly have been relevant to events claimed to have occurred many years before. 31 Buchanan J was thus dealing with a factual context in which the recent material had no bearing on the outcome, and so the tribunal's error in failing to have regard to it did not affect its exercise of power in determining the review. I do not understand that his Honour was seeking to qualify the principle; rather he was explaining why it had no bearing on the ultimate exercise of power by the tribunal on the facts before him.
Case: Telstra Corporation Ltd v ACCC [2008] FCA 1758
Outcome: cited
The tribunal was obliged to identify the evidence on which its finding of "considerable relaxation of the one child policy" was based pursuant to s 430(1)(d) of the Act. It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based. However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities.
Case: VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31
Outcome: distinguished
Her Honour said that no authority had been cited to her in support of the proposition that the tribunal was under an obligation to make its decision on the basis of the most country information reasonably available to it. She said that in VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 Sundberg, Marshall and Weinberg JJ had held that the tribunal had no obligation "to seek out or act upon more recent information" at [25]. The trial judge said that it was open to the tribunal to prefer particular country information in arriving at findings of fact and that no jurisdictional error would be established if it did so or gave different weight to various items, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 among other authorities.
Case: VEAL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: followed
In VEAL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 96 [16] Gleeson, Gummow, Kirby Hayne and Heydon JJ said: "Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached." (original emphasis) 34 Ordinarily, but not invariably, a failure to follow the procedures mandated by law necessarily affects the exercise of an administrative decision-maker's power, because the decision will be arrived at in a manner outside that authorising it; hence the need to pay particular attention in judicial review proceedings to the formalities of procedure in the path leading to the challenged decision.
Case: VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
Outcome: cited
Her Honour said that no authority had been cited to her in support of the proposition that the tribunal was under an obligation to make its decision on the basis of the most country information reasonably available to it. She said that in VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 Sundberg, Marshall and Weinberg JJ had held that the tribunal had no obligation "to seek out or act upon more recent information" at [25]. The trial judge said that it was open to the tribunal to prefer particular country information in arriving at findings of fact and that no jurisdictional error would be established if it did so or gave different weight to various items, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 among other authorities.
Case: VTAO v Minister for Immigration and Multicultural Indigenous Affairs (2004) 81 ALD 332 ; [2004] FCA 927
Outcome: cited
The tribunal's decision occupied 49 pages of very small close typing. It extracted a great deal of material, sometimes repetitiously. The critical reasoning in its consideration of the one child policy was attacked on five bases below, which were repeated in the notice of appeal. These bases are: 1. The tribunal erred because it did not have regard to the most recent country information currently available to it. 2. The tribunal erred in finding that if the appellants had to pay a social compensation fee under applicable Chinese law, that would not amount to persecution within the meaning of s 91R(1). 3. The tribunal failed to enquire as to whether the social compensation fee was appropriate and adapted to a legitimate end so as to be a law of general application. (The appellants relied on the decision of Merkel J in VTAO v Minister for Immigration and Multicultural Indigenous Affairs (2004) 81 ALD 332 ; [2004] FCA 927 at [38] - [39] .) 4. The tribunal erred because it relied on the practice of authorities in Shandong Province as to payment of the social compensation fee identified in a Department of Foreign Affairs and Trade (DFAT) Report 404. That report said that this practice accorded with the position that DFAT had found the previous year, 2004, in Fujian Province, whence the husband and wife came. 5. The tribunal did not make findings in relation to the amount of the social compensation fee which was likely to be imposed on the parent appellants for their breaches of the one child policy, or the time that S would be a "black child" while any fee was unpaid. 10 The tribunal accepted that S would have the status of a "black child" initially on his return to China. However, it reasoned, on the basis of country information, that the status of a "black child" could be removed once the father paid a social compensation fee which would allow the child's registration. It accepted country information that all registered children were entitled to access to health and educational facilities, although a first child is given preference. 11 The tribunal concluded that it was satisfied that, like the general population in China, the parent appellants may suffer financial consequences for their breaches of the one child policy. However, it concluded that "this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis" (emphasis added).
Case: VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29
Outcome: distinguished
Her Honour reasoned that DFAT report 404 was not necessarily inconsistent with the tribunal's conclusion of a considerable relaxation of the one child policy in Fujian province. She pointed to the other evidence before the tribunal, to which I have referred, which pre-dated and post-dated the 2002 Home Office Report. The trial judge followed what she understood to have been the reasoning in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [64] - [73] per Lander J with whom Kiefel J at [8] and, on this issue, Grey J at [7] agreed. Lander J said that it was not possible to contend that the tribunal had failed to have regard to two pieces of country information when it sought and obtained that information and made direct reference to it in its reasons. 25 Lander J held that, in expressing conclusions, the tribunal did not need to identify which of the particular pieces of information it had relied upon for any particular conclusion, and thus rejected a submission that the tribunal had failed to have regard to the information ( VWFW [2006] FCAFC 29 at [72] ). He distinguished the facts of that case from that of a decision-maker who failed to take into account a relevant consideration which the decision-maker was bound to take into account, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. He then concluded that the appellant's argument was, in truth, one that the tribunal had failed to give sufficient weight to the information contained in the two documents and that that submission had to fail: VWFW [2006] FCAFC 29 at [73] . 35 The Minister argued that the appellants' complaint on this ground amounted to, in effect, a failure to give sufficient weight to the information contained in DFAT report 404. He relied on the reasoning on VWFW [2006] FCAFC 29 at [73] . He contended that the mere failure of the tribunal to refer to a piece of evidence which the Court thinks relevant does not, of itself, lead to the conclusion that the tribunal failed to take into account the relevant consideration: see Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 at [27] - [29] per Jacobson J. 36 However, those cases did not apply or qualify the principle identified by Mason J in Peko-Wallsend 162 CLR 44-45 that "... an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made" and that should be the most current material available to the decision-maker. Indeed, in VWFW [2006] FCAFC 29 at [68] - [69] , Lander J noted there that the first item of country information relied on suggested that the previous information was still current, and the second item of country information relied on was consistent with the tribunal's findings.
Case: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396
Outcome: referred to
debate which had existed as to whether an applicant for interlocutory injunctive relief required to demonstrate a "prima facie" case, or a "serious question to be tried", a phrase, derived from the speech of Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 407 was resolved. These expressions may be used interchangeably so long as their meaning is understood. As their Honours said at [70]: There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham . In any event this application for an interlocutory injunction does not engage the adequacy of damages test set out in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 408. That test applies where the injunction is to restrain interference with a legal right of the plaintiff. The ABCC's application is made in the public interest of improving the building and construction industry under a statutory capacity to so apply. It is not in respect of any interference with any legal right of the ABCC. The legislature plainly conferred on the ABCC powers to obtain interlocutory injunctions, damages and penalties as instruments for effecting that improvement: ICI Operations [1992] FCA 474 ; 38 FCR 248 per French J at [268]. No prejudice to the respondents
Case: AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003)
Outcome: referred to
approach to justification is a useful, if imprecise, analogue for whether action taken in this case was "based on a reasonable concern" under s 36(1)(g)(i). Munro J in AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003) at [45] thought it to be so in respect to a predecessor provision namely s 124 of the Industrial Relations Act 1988 (Cth) .
Case: Australian Broadcasting Commission v O'Neil [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: applied
Court is required to make two main inquiries. The first is whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be held to be entitled to relief. The second is whether the inconvenience or injury to the applicant if an injunction were refused outweighs or is outweighed by the injury the respondent would suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 ; Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57. Gummow and Hayne JJ with whom Gleeson CJ and Crennan J agreed, in ABC v O'Neill [2006] HCA 46 ; 227 CLR 57 at [65] explained the application of "prima facie case" as used in Beecham : By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
Case: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: considered
Court is required to make two main inquiries. The first is whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be held to be entitled to relief. The second is whether the inconvenience or injury to the applicant if an injunction were refused outweighs or is outweighed by the injury the respondent would suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 ; Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57. Their Honours then referred to what was said in Beecham at 622: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. The debate which had existed as to whether an applicant for interlocutory injunctive relief required to demonstrate a "prima facie" case, or a "serious question to be tried", a phrase, derived from the speech of Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 407 was resolved. These expressions may be used interchangeably so long as their meaning is understood. As their Honours said at [70]: There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham .
Case: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464
Outcome: cited
apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more dubious claim, which nevertheless raises a serious question to be tried, may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. The threshold for a serious question to be tried is not particularly onerous: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41, at [22].
Case: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41
Outcome: cited
apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more dubious claim, which nevertheless raises a serious question to be tried, may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. The threshold for a serious question to be tried is not particularly onerous: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41, at [22].
Case: Cahill v Construction, Forestry Mining and Energy Union (No 2) [2008] FCA 1292 ; (2008) 170 FCR 357
Outcome: followed
38 of the BCII Act covers acts by persons other than employees. In Cahill v Construction, Forestry Mining and Energy Union (No 2) [2008] FCA 1292 ; (2008) 170 FCR 357 at [49] - [57] , Kenny J held that the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in the BCII Act covered the imposition of bans, limitations or restrictions by unions. Arguably s 38 extends to union officers in a case such as this. In any event the interlocutory injunction as against the CFMEU would, practically, be directed also at its employees, officers or agents. Further or alternatively, Mr McDonald and Mr Buchan and the CFMEU, are amenable to interlocutory injunctive orders under s 49 of the BCII Act by reason of the accessorial liability provisions of s 48(2) if a prima facie case is demonstrated that each aided, abetted, counselled or procured the contraventions by employees; or in the case of Mr McDonald and Mr Buchan that they were also directly or indirectly knowingly concerned in or a party to those contraventions. It will be sufficient for present purposes in relation to Mr McDonald and Mr Buchan, as respondents, if in due course, I consider only the question of accessorial liability under s 48, which of course depends on primary liability, upon a prima facie basis, being established against the CFMEU.