mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 81 ALJR 1
Outcome: followed
At the time this appeal was argued before me, the High Court had not handed down its decision in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom . That decision has now been handed down: [2006] HCA 50 ; (2006) 81 ALJR 1 (' Nystrom '). The decision is a significant one in that it resolves a number of the issues in this case. 15 In Nystrom , the Minister appealed from a decision of the Full Court of this Court. The Minister had cancelled the respondent's transitional permanent visa and the respondent challenged that decision. He submitted that he held an absorbed person visa instead of, or in addition to, the transitional permanent visa. He submitted that the Minister's decision was invalid for jurisdictional error because the Minister had made a decision in relation to a visa he did not hold. He also argued that if he held a transitional permanent visa the Minister in cancelling that visa had erred because he had not taken into account the fact that by reason of s 501F(3) of the Act his decision would also lead to the cancellation of his absorbed person visa. The respondent also submitted that the power in s 501(2) was restricted or curtailed by the operation of s 200 and s 201 of the Act. It will be apparent from this brief summary that a number of the arguments in Nystrom were the same as the arguments put in this case. 16 By the time Nystrom had reached the High Court it was common ground that on 1 September 1994 the respondent held an absorbed person visa. As I have said, in the case before me the Tribunal member seems to have assumed that the applicant held an absorbed person visa, although he did not finally decide the point. On appeal to this Court, the Minister argued the matter on the basis that the applicant held an absorbed person visa as at 1 September 1994 without conceding that that was necessarily the case. 17 A non-citizen who falls within the terms of s 34(2) of the Act is taken to have been granted an absorbed person visa on 1 September 1994. Section 34(1) and (2) of the Act are in the following terms: '(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas. (2) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date, had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and (d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994.'
Case: Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402
Outcome: considered
The applicant's third submission is that s 501(2) authorises an impermissible exercise of judicial power in that it authorises the Minister to punish a visa-holder for the crimes he or she has committed and for which he or she has already been punished. To the extent that it does that it is said by the applicant to be invalid. The applicant refers to observations made by Spender J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402 at [30] - [35] . In the alternative, the applicant submits that if s 501(2) does not authorise an impermissible exercise of the judicial power and is valid, nevertheless, in this case, the power was exercised for the impermissible purpose of punishing the applicant for the criminal offences he had committed. In the context of this submission the applicant referred to the following factual matters: 1. The applicant is a non-citizen of longstanding, which I assume means that he has been in Australia for a considerable period of time. 2. The applicant has two children in Australia. 3. The applicant was the holder of an absorbed person's visa and was entitled to rely upon the nature of the visa, coupled with the protective elements of s 201 of the Act, to assume that he had been absorbed in the Australian community. 4. The applicant has no significant ties with his place of birth and would be liable to live a destitute life. 5. The applicant has been punished by the Australian courts for offences committed in Australia while present here as an absorbed person.
Case: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28
Outcome: followed
In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 the High Court held that s 501(2) is a valid exercise of the Federal Parliament's power to make laws with respect to aliens. Similar arguments to those put in this case were put to the Full Court of this Court in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292. The Court considered the authorities relevant to the relationship between laws providing for the deportation of aliens and the cancellation of their visas and Chapter 111 of the Constitution and then summarised the effect of those authorities in the following propositions (at [66]): '1. Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law. 2. Under Chapter III of the Constitution , the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution . 3. Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual. 4. Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty. 5. Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment. 6. Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.'
Case: Abebe v The Comonwealth [2004] HCA 32 ; (1999) 197 CLR 510
Outcome: cited
The first respondent further submits that any weight to be given by the Tribunal to evidence was a matter for the Tribunal: Abebe v The Comonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at [197] . 36 Finally, the first respondent submits that there was no error in the way in which the Federal Magistrate dealt with the issue of s 425 and that the appellant was properly on notice of the issue in relation to the tenant generally. 37 The first respondent's contention that the grounds of appeal raise matters not raised before the Federal Magistrate must be accepted. The sole issue before the Federal Magistrate was whether there had been compliance with s 425 by the Tribunal putting to the appellant conflicting statements in the Amnesty International Report. The Federal Magistrate ruled against the appellant on that sole ground. The appellant has not made that ruling the subject matter of this appeal. 44 Insofar as it is submitted that the Tribunal was in error in determining the absence of fear on the part of the appellant, that was a matter for the Tribunal and not for this Court. The weight that the Tribunal put upon the evidence for the purpose of determining that issue was also for the Tribunal and not for this Court: Abebe [2004] HCA 32 ; 197 CLR 510.
Case: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
The second ground seems to be a complaint going peculiarly to the merits or to the weight which the Tribunal put upon the evidence which gave rise to the Tribunal's ultimate decision, disguised as it were as a complaint of bias. Insofar as it is a complaint about the merits, that is not a matter for this Court: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Insofar as it is a complaint of apprehended bias or bias, there is simply no evidence to support a claim of prejudgment.
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68
Outcome: cited
A party is not entitled to raise new grounds which were deliberately or by inadvertence not put to the Court from which the appeal is brought: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71. 39 If the appellant were entitled to raise these new grounds, it would mean that this Court would have to sit, as it were, as the Court at first instance to determine whether these new grounds would give rise to the relief sought in the application before the Federal Magistrate. Parliament has given the responsibility for hearing these applications exclusively to the Federal Magistrates Court. The parties, whether they are represented or unrepresented, ought to articulate all of their complaints in relation to the Tribunal's reasons in the Federal Magistrates Court so that that Court can make the appropriate findings and reach a considered decision on all aspects of the Tribunal's decision.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Outcome: cited
The second ground seems to be a complaint going peculiarly to the merits or to the weight which the Tribunal put upon the evidence which gave rise to the Tribunal's ultimate decision, disguised as it were as a complaint of bias. Insofar as it is a complaint about the merits, that is not a matter for this Court: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Insofar as it is a complaint of apprehended bias or bias, there is simply no evidence to support a claim of prejudgment.
Case: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Outcome: cited
To allow the appellant to articulate these grounds on appeal would be to allow the appellant to treat this Court as a Court at first instance. Such a course of action is unsatisfactory, not only for this Court but also for the High Court which would hear any application for special leave from this decision. It would put the High Court, as it were, in a position of hearing applications for special leave from a court of first instance: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: cited
However, authority seems to suggest that I need to consider whether the grounds have merit before I determine whether I should give leave for the appellant to raise the matters: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. 42 The Tribunal considered the question of a well-founded fear of persecution conventionally. The Tribunal said: Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. 43 The Tribunal stated the correct test which it applied to the facts. It found that the appellant did not have a genuine fear of persecution. That being the case, the appellant could not satisfy the test of well-founded fear of persecution as determined by the authorities.
Case: Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854
Outcome: cited
Whether a question of law is raised by an appeal from the Tribunal is itself a question of law. The leading authority is the judgment of Mason J, with whom Gibbs, Stephen and Aickin JJ agreed, in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7. His Honour there stated the rule in these terms: the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. However, Mason J went on to qualify that statement by pointing out that when a statute uses words according to their "common understanding", and the question is whether the facts as found fall within such words, the question is one of fact. The example his Honour cited was the decision of the House of Lords in Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 where the question raised by the applicable statute was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that the behaviour was insulting the question was one of fact.
Case: Farnaby and the Military Rehabilitation and Compensation Commission [2008] AATA 603
Outcome: affirmed
On 24 January 2002 Mr Farnaby made a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth). He alleged that while at HMAS Leeuwin he suffered physical and sexual abuse which resulted in post traumatic stress disorder (PTSD). His claim was disallowed. That decision was affirmed by the Administrative Appeals Tribunal, constituted by the Hon R J Groom (Deputy President) and Dr J Campbell (Member): Farnaby and the Military Rehabilitation and Compensation Commission [2008] AATA 603. Mr Farnaby now appeals to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 3 The transitional provisions of the 1988 Act required Mr Farnaby to show that, within the meaning of the Commonwealth Employees Compensation Act 1930 (Cth), he had suffered a "personal injury by accident arising out of or in the course of his employment": s 9(1). "Injury" means "any physical or mental injury" (s 4(1)) or "disease ... due to the nature of (his) employment" (s 10(1)). 4 For the purposes of this appeal we are only concerned with Mr Farnaby's claim based on "mental injury". PTSD is a mental injury.
Case: Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215
Outcome: cited
There is no doubt that in most areas of the law, where rights or liabilities depend on something having been caused by a particular event or circumstance, it is sufficient if the latter is a cause of the former, notwithstanding that there may be other, perhaps more important, causes. The case cited by Mr Read, Shorey v PT Limited [2003] HCA 27 ; (2003) 197 ALR 410 , a common law negligence case, is one example of this. Other examples are I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 (damages under the Trade Practices Act 1974 (Cth)) and Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 (fraudulent misrepresentation). It may safely be assumed that the same rule would apply to compensation claims under the 1930 Act.
Case: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: cited
Whether a question of law is raised by an appeal from the Tribunal is itself a question of law. The leading authority is the judgment of Mason J, with whom Gibbs, Stephen and Aickin JJ agreed, in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7. His Honour there stated the rule in these terms: the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. However, Mason J went on to qualify that statement by pointing out that when a statute uses words according to their "common understanding", and the question is whether the facts as found fall within such words, the question is one of fact. The example his Honour cited was the decision of the House of Lords in Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 where the question raised by the applicable statute was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that the behaviour was insulting the question was one of fact.
Case: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: cited
There is no doubt that in most areas of the law, where rights or liabilities depend on something having been caused by a particular event or circumstance, it is sufficient if the latter is a cause of the former, notwithstanding that there may be other, perhaps more important, causes. The case cited by Mr Read, Shorey v PT Limited [2003] HCA 27 ; (2003) 197 ALR 410 , a common law negligence case, is one example of this. Other examples are I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 (damages under the Trade Practices Act 1974 (Cth)) and Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 (fraudulent misrepresentation). It may safely be assumed that the same rule would apply to compensation claims under the 1930 Act.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The arguments must be considered in the light of a long line of cases, endorsed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272, which make it clear that the reasons of an administrative decision-maker such as the Tribunal in the present case are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 50 Mr Read argued, with particular reference to the passage in the Tribunal's reasons at [175] commencing "any continuing symptoms...", that the Tribunal only considered Mr Farnaby's symptoms at the time of the hearing and failed to consider his symptoms, and whether or not those symptoms indicated he suffered the mental injury PTSD, as at the time of his claim in January 2002. 51 The Tribunal plainly adverted to the fact that Mr Farnaby lodged his claim on or about 24 January 2002; see reasons at [25]. There is no ground for thinking that thereafter the Tribunal somehow overlooked or forgot that fact. The circumstances in which Mr Farnaby came to lodge his claim assumed some importance in the narrative of events. Shortly before the lodgement he meets Ms Nalder by chance and it is then that he "first gained knowledge that he may be suffering an injury or disease as a result of his employment": at [24]. This also prompts his first medical consultation about the matter, with Dr Welch.
Case: Shorey v PT Limited [2003] HCA 27 ; (2003) 197 ALR 410
Outcome: cited
There is no doubt that in most areas of the law, where rights or liabilities depend on something having been caused by a particular event or circumstance, it is sufficient if the latter is a cause of the former, notwithstanding that there may be other, perhaps more important, causes. The case cited by Mr Read, Shorey v PT Limited [2003] HCA 27 ; (2003) 197 ALR 410 , a common law negligence case, is one example of this. Other examples are I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 (damages under the Trade Practices Act 1974 (Cth)) and Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 (fraudulent misrepresentation). It may safely be assumed that the same rule would apply to compensation claims under the 1930 Act.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
The making of the declaratory order sought is a little more problematical. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): see Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-2. The circumstances in which that power may be exercised are not circumscribed by strict rules: see per Gibbs J in Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437. However, there has been a long held view that a declaration, a judicial act, should be made only on evidence and not simply on admissions or (as in this case) on deemed admissions: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 533; Wallersteiner v Moir [1974] 1 WLR 911 at 1029. In addition, it is appropriate to be cautious because a declaration may have effects more broadly than as between the particular litigants: Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70 at 82 per Wells J; Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955.
Case: Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: cited
The making of the declaratory order sought is a little more problematical. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): see Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-2. The circumstances in which that power may be exercised are not circumscribed by strict rules: see per Gibbs J in Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437. However, there has been a long held view that a declaration, a judicial act, should be made only on evidence and not simply on admissions or (as in this case) on deemed admissions: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 533; Wallersteiner v Moir [1974] 1 WLR 911 at 1029. In addition, it is appropriate to be cautious because a declaration may have effects more broadly than as between the particular litigants: Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70 at 82 per Wells J; Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955.