mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 ; (2004) 138 FCR 70
Outcome: cited
As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home ( Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 ; (2004) 138 FCR 70 at [36] ). 15 As s 7(3)(f) reveals, for the purposes of the Act, it is, at the least, a relevant factor in determining whether a person is residing in Australia that he or she intends to remain permanently in Australia. 'Permanently' in this context does not mean forever, and it does not mean without ever leaving Australia whether for business or recreational purposes. It requires the person to have an enduring commitment to Australia as home ( Taslim ). 16 It seems to me that it may be arguable that, in the context of the Act, a person cannot be an Australian resident and the resident of another country at the same time. Alternatively, it may be arguable that, in the context of the Act, a person cannot have been an Australian resident for any continuous period if he or she has, during that period, been a resident of, and resident in, another country. However, the Secretary did not advance either of these arguments and I need not consider their merit. 17 The Secretary submitted that, if a person becomes a resident of a country other than Australia, this is an indication that his or her 'continuous period' of Australian residence may have ended or been interrupted. Subject to the observations in [16], I accept the validity of this submission.
Case: Maher v Commonwealth Bank of Australia [2004] FCA 1441
Outcome: referred to
In order to place the motions in some context it is necessary to recount part of the procedural history of the litigation between Mr Maher and the respondents. A more detailed account of the many encounters between the parties is to be found in the reasons for judgment of North J in Maher v Commonwealth Bank of Australia [2004] FCA 1441 at [2] , [3], [5], [6] and in the reasons of Jessup J: Maher v Commonwealth Bank of Australia [2007] FCA 113 at [2] - [7] , [12]-[14]. It is sufficient for present purposes to record that, on 2 February 2004, and, again on 5 February 2004, Finkelstein J made costs orders against Mr Maher and in favour of certain of the respondents. Mr Maher did not lodge an appeal against Finkelstein J's orders. An application for an extension of time within which to appeal against the orders, made on 5 February 2004 was refused by Heerey J on 11 May 2004. A further attempt, by application dated 18 June 2004, to impugn Finkelstein J's orders was made in the High Court. The application was refused. On 4 November 2004 a Registrar of the Court issued certificates of taxation. They related to orders which had been made by the Court on 26 September 2001 and the orders made by Finkelstein J on 2 and 5 February 2004. On 9 February 2005 a Registrar entered an order requiring Mr Maher to pay the costs identified in the two certificates to the first, second and third respondents.
Case: Maher v Commonwealth Bank of Australia [2007] FCA 113
Outcome: referred to
In order to place the motions in some context it is necessary to recount part of the procedural history of the litigation between Mr Maher and the respondents. A more detailed account of the many encounters between the parties is to be found in the reasons for judgment of North J in Maher v Commonwealth Bank of Australia [2004] FCA 1441 at [2] , [3], [5], [6] and in the reasons of Jessup J: Maher v Commonwealth Bank of Australia [2007] FCA 113 at [2] - [7] , [12]-[14]. It is sufficient for present purposes to record that, on 2 February 2004, and, again on 5 February 2004, Finkelstein J made costs orders against Mr Maher and in favour of certain of the respondents. Mr Maher did not lodge an appeal against Finkelstein J's orders. An application for an extension of time within which to appeal against the orders, made on 5 February 2004 was refused by Heerey J on 11 May 2004. A further attempt, by application dated 18 June 2004, to impugn Finkelstein J's orders was made in the High Court. The application was refused. On 4 November 2004 a Registrar of the Court issued certificates of taxation. They related to orders which had been made by the Court on 26 September 2001 and the orders made by Finkelstein J on 2 and 5 February 2004. On 9 February 2005 a Registrar entered an order requiring Mr Maher to pay the costs identified in the two certificates to the first, second and third respondents.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
The submissions concluded by referring to some words of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 where his Honour, in dealing with s 424A of the Act, said (at [206]) that: "Also, the fact that appraisal, thought processes and determination are not information does not mean that they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c)." The appellant contended that "[i]f such a duty is cast on the Tribunal in respect of information, it cannot be said that no similar duty is cast on the Tribunal in respect of inconsistencies."
Case: SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260
Outcome: cited
The authorities referred to by the appellant do not support the proposition that the Tribunal is required to particularise any inconsistencies which it discerns when considering the evidence before it and to incorporate such particulars in any notice given under s 359A of the Act. In SZBYR the joint judgment (at [18]) said that: "... However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself." (Emphasis added). The distinction between "information" and inconsistencies emerging from such information was referred to by Siopis J in SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260. His Honour said: "[20] I understood the appellant's submission to complain that he had not been given an opportunity to comment in writing upon what he regarded as findings of inconsistencies in his evidence, in the two respects identified; which he said was "information" to which s 424A(1) applied because it was the reason, or part of the reason, for the Tribunal affirming the decision under review. [21] In my view, the appellant's submission is not to be accepted. The reason why the Tribunal affirmed the decision was that it disbelieved the appellant's evidence because of the implausibility of that evidence, rather than as the appellant characterised it, the "inconsistencies" in his evidence. But whether the appellant's evidence was disbelieved due to its "implausibility" or "inconsistency" is naught to the point, because it is accepted that a finding that evidence is disbelieved on the grounds of implausibility or inconsistency as part of the subjective appraisal made by the Tribunal which does not comprise "information" for the purpose of s 424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR at 616, at [18])..." The appellant was unable to point to any decision which had held that it was necessary for inconsistencies to be particularised in notices given under s 359A or 424A of the Act.
Case: Re Mingchi Lin v Minister for Immigration and Citizenship (2009) 106 ALD 211, [2009] AATA 44
Outcome: affirmed
31 March 2008, the applicant applied to the Administrative Appeals Tribunal ( the Tribunal ) for a review of the delegate's decision. The Tribunal held a hearing on 31 October 2008. On 22 January 2009, the Tribunal affirmed the delegate's decision. At the same time, the Tribunal delivered reasons in support of its decision ( Re Mingchi Lin v Minister for Immigration and Citizenship (2009) 106 ALD 211, [2009] AATA 44 ( the Tribunal's reasons )). The proceedings in this Court are brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ( the AAT Act ). The applicant has raised four questions of law for this Court's consideration. These questions are set out below under the heading The Questions of Law and the Grounds of Appeal . This Court has wide powers when hearing and determining an appeal under s 44 of the AAT Act. The Court may make such order as it thinks appropriate by reason of its decision (s 44(4)). The Court may make findings of fact (s 44(7)) and may affirm or set aside the Tribunal's decision and remit the case to be heard and decided again in accordance with the directions of the Court (s 44(5)).
Case: Commissioner of State Revenue (Vic) v Royal Insurance Australia Limited [1994] HCA 61 ; (1994) 182 CLR 51
Outcome: applied
Mason CJ said in Commissioner of State Revenue (Vic) v Royal Insurance Australia Limited [1994] HCA 61 ; (1994) 182 CLR 51 at 64: But, as the Court went on to point out in Ward v Williams , the question whether a public officer, to whom a power is given by facultative words, is bound to exercise that power upon any particular occasion, or in any particular manner, is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power (see Ward v Williams [1955] HCA 4 ; (1955) 92 CLR 496 at 505).
Case: Commissioner of Taxation v Eskandari [2004] FCA 8 ; (2004) 134 FCR 569
Outcome: applied
Court has to adopt a practical approach when considering whether or not relief should be granted as a result of its determination of questions of law pursuant to s 44 of the AAT Act. In the present case, the approach taken by the Tribunal in grouping together shorter periods of time into calendar years or, as was the case in 2006 and 2007, into an 18 month period, did not distort or place a different complexion upon those matters which were advanced by the applicant as supporting his subs (4) claims. In my view, had the approach which I have held is the correct approach strictly been taken in the present case the ultimate conclusions reached by the Tribunal in respect of the applicant's subs (4) claims would not have been any different. Further, the only questions of law raised by the applicant are those which I have extracted at [24] above. The applicant did not raise any question or issue concerning the way in which the Tribunal approached the delineation of the periods which it considered might receive subs (4) treatment. To send the matter back to the Tribunal in those circumstances would be futile. The Court will not take that course if to do so would be futile (see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562; and Commissioner of Taxation v Eskandari [2004] FCA 8 ; (2004) 134 FCR 569 at [50] [54) (pp 583 584).
Case: Corlette v Mackenzie (1995) 62 FCR 584
Outcome: cited
the same case, Brennan J (at 84 85) and Dawson J (at 97 98) made statements to a similar effect. A number of the relevant authorities were also gathered together and discussed by Beazley J in Corlette v Mackenzie (1995) 62 FCR 584 at 589 593. The Preamble to the new Act provides as follows: Preamble The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its people; and (b) by sharing their democratic beliefs; and (c) by respecting their rights and liberties; and (d) by upholding and obeying the laws of Australia. Australian citizenship is a privilege. However, the Parliament is to be taken as wanting to encourage as many persons who are relevantly connected to Australia to take up what is described in the Preamble as: ... full and formal membership of the community of the Commonwealth of Australia ...
Case: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550
Outcome: applied
Court has to adopt a practical approach when considering whether or not relief should be granted as a result of its determination of questions of law pursuant to s 44 of the AAT Act. In the present case, the approach taken by the Tribunal in grouping together shorter periods of time into calendar years or, as was the case in 2006 and 2007, into an 18 month period, did not distort or place a different complexion upon those matters which were advanced by the applicant as supporting his subs (4) claims. In my view, had the approach which I have held is the correct approach strictly been taken in the present case the ultimate conclusions reached by the Tribunal in respect of the applicant's subs (4) claims would not have been any different. Further, the only questions of law raised by the applicant are those which I have extracted at [24] above. The applicant did not raise any question or issue concerning the way in which the Tribunal approached the delineation of the periods which it considered might receive subs (4) treatment. To send the matter back to the Tribunal in those circumstances would be futile. The Court will not take that course if to do so would be futile (see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562; and Commissioner of Taxation v Eskandari [2004] FCA 8 ; (2004) 134 FCR 569 at [50] [54) (pp 583 584).
Case: NBGI v MIMIA [2005] FCAFC 233
Outcome: cited
written submissions, the respondent contends that the operative order is the order of 6 October 2005. His Honour embarked upon consideration on 19 June 2006 of whether the applicant had complied with the order of 6 October 2005 and having made a finding that the applicant was in default, his Honour declared that the proceeding stood dismissed from 14 October 2005. His Honour did not, on 19 June 2006, dismiss the application. His Honour embarked upon a determination of whether the condition upon which the order rested was satisfied and declared that the order took effect according to its terms. The order of 6 October 2005 is the source of the dismissal of the application. The order is a conflation of two things, namely, an order that the applicant take a step by a certain date and an order that upon default the proceeding 'stands dismissed' as to the whole of the relief claimed by the applicant (see Order 35A, r 2 and r 3). The order made on 19 June 2006 is declaratory of the construction of the order of 6 October 2005 and not, in my view, the operative order of dismissal of the application. See NBGI v MIMIA [2005] FCAFC 233 per Black CJ, Finkelstein and Allsop JJ at [11] and Lenijamar Pty Limited v AGC Advances Limited (1990) 27 FCR 388. Orders 2, 3 and 4 of his Honour's order of 19 June 2006 are operative orders in terms of the subject matter they address.
Case: Lenijamar Pty Limited v AGC Advances Limited (1990) 27 FCR 388
Outcome: cited
written submissions, the respondent contends that the operative order is the order of 6 October 2005. His Honour embarked upon consideration on 19 June 2006 of whether the applicant had complied with the order of 6 October 2005 and having made a finding that the applicant was in default, his Honour declared that the proceeding stood dismissed from 14 October 2005. His Honour did not, on 19 June 2006, dismiss the application. His Honour embarked upon a determination of whether the condition upon which the order rested was satisfied and declared that the order took effect according to its terms. The order of 6 October 2005 is the source of the dismissal of the application. The order is a conflation of two things, namely, an order that the applicant take a step by a certain date and an order that upon default the proceeding 'stands dismissed' as to the whole of the relief claimed by the applicant (see Order 35A, r 2 and r 3). The order made on 19 June 2006 is declaratory of the construction of the order of 6 October 2005 and not, in my view, the operative order of dismissal of the application. See NBGI v MIMIA [2005] FCAFC 233 per Black CJ, Finkelstein and Allsop JJ at [11] and Lenijamar Pty Limited v AGC Advances Limited (1990) 27 FCR 388. Orders 2, 3 and 4 of his Honour's order of 19 June 2006 are operative orders in terms of the subject matter they address.
Case: Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381
Outcome: cited
is no doubt that the Court has power, after the event, to extend the time for the filing of an amended application. See Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 per Goldberg J at [21], FAI General Insurance Co. Ltd v Southern Cross Exploration NL (1987 1988) [1988] HCA 13 ; 165 CLR 268 at pp 283-284; Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388 ; Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 per French J at [103].
Case: Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388
Outcome: cited
is no doubt that the Court has power, after the event, to extend the time for the filing of an amended application. See Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 per Goldberg J at [21], FAI General Insurance Co. Ltd v Southern Cross Exploration NL (1987 1988) [1988] HCA 13 ; 165 CLR 268 at pp 283-284; Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388 ; Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 per French J at [103].
Case: Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203
Outcome: cited
is no doubt that the Court has power, after the event, to extend the time for the filing of an amended application. See Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 per Goldberg J at [21], FAI General Insurance Co. Ltd v Southern Cross Exploration NL (1987 1988) [1988] HCA 13 ; 165 CLR 268 at pp 283-284; Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388 ; Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 per French J at [103].
Case: Powerflex Services Pty Ltd v Data Access Corp. (1996) 137 ALR 498
Outcome: cited
this application, the applicant seeks an order staying the orders of 19 June 2006 which comprise four orders. Since order 1 of the orders of 19 June 2006 is not an operative order effecting a dismissal, I do not propose to stay the operation of the declaration as to the effect of the order of 6 October 2005 from the date of the failure to comply with the condition. Order 3 of the order of 19 June 2006 is a refusal of an extension of time for compliance with the order of 6 October 2005. That matter is the subject of leave to appeal. If the appeal is meritorious, the Court has power to set aside order 3 and extend time to enable an amended application to be filed thus reinstating the application. An application to stay a refusal to extend time is apt to be construed as an order extending time. That matter is before the Full Court. The applicant also seeks a stay in respect of the orders of 6 October 2005. I propose to stay order 1 of that order, pending the determination of the appeal (with leave) from the refusal on 19 June 2006 to extend the time for the filing of an amended application, to the extent that the order of 6 October 2005 provides, prospectively, that the application 'stands dismissed'. The respondent does not oppose the application for a stay which I understand to mean that the respondent submits that in exercising the discretion I ought to be satisfied that there is at least an arguable case to be made, although not a persuasive case, in support of the appeal with leave consistent with Powerflex Services Pty Ltd v Data Access Corp. (1996) 137 ALR 498 and Alexander v Cambridge Credit Corp. Ltd (Receivers Appointed) (1985) 2 NSWLR 685. Prima facie, of course, the judgment appealed from is correct and a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ( Re Middle Harbour Investments Ltd (In Liq) (No. 2) [1977] 2 NSWLR 652.
Case: Alexander v Cambridge Credit Corp. Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Outcome: cited
this application, the applicant seeks an order staying the orders of 19 June 2006 which comprise four orders. Since order 1 of the orders of 19 June 2006 is not an operative order effecting a dismissal, I do not propose to stay the operation of the declaration as to the effect of the order of 6 October 2005 from the date of the failure to comply with the condition. Order 3 of the order of 19 June 2006 is a refusal of an extension of time for compliance with the order of 6 October 2005. That matter is the subject of leave to appeal. If the appeal is meritorious, the Court has power to set aside order 3 and extend time to enable an amended application to be filed thus reinstating the application. An application to stay a refusal to extend time is apt to be construed as an order extending time. That matter is before the Full Court. The applicant also seeks a stay in respect of the orders of 6 October 2005. I propose to stay order 1 of that order, pending the determination of the appeal (with leave) from the refusal on 19 June 2006 to extend the time for the filing of an amended application, to the extent that the order of 6 October 2005 provides, prospectively, that the application 'stands dismissed'. The respondent does not oppose the application for a stay which I understand to mean that the respondent submits that in exercising the discretion I ought to be satisfied that there is at least an arguable case to be made, although not a persuasive case, in support of the appeal with leave consistent with Powerflex Services Pty Ltd v Data Access Corp. (1996) 137 ALR 498 and Alexander v Cambridge Credit Corp. Ltd (Receivers Appointed) (1985) 2 NSWLR 685. Prima facie, of course, the judgment appealed from is correct and a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ( Re Middle Harbour Investments Ltd (In Liq) (No. 2) [1977] 2 NSWLR 652.