mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZEEU v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: referred to
Consequently there was nothing stopping the Tribunal from relying on grounds other than the attendance record ground. No breach of natural justice arose as a consequence because the facts giving rise to these breaches of condition 8202 were obvious and incontrovertible. This is especially so where, as here, s 357A applied to the application for review such that general procedural fairness grounds of review were not open to the appellant in the Court below. Any allegation that s 359A of the Act was not complied with by the Tribunal, due to an alleged failure to raise with the appellant the College's lack of certification of satisfactory completion of his course, is met by the fact that the Tribunal had two other independent grounds for cancelling the visa. See, by way of analogy in respect of s 424A, SZEEU v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [160] per Weinberg J and [233] per Allsop J. In other words, the failure of the Tribunal to inform the appellant that the visa could be cancelled as a consequence of a lack of certification of successful completion of his course did not affect the outcome of the review. Furthermore, the lack of certification was something so obvious that it need not have been stated and was a vital requirement for satisfaction of condition 8202. 34 The appeal ground relating to the Tribunal's consideration of whether the applicant was engaged in study, rather than whether he was enrolled in a course, was not developed further in oral submissions before the Court. The contention of the appellant that he was not so enrolled because the delegate allegedly told him not to enrol does not deny the fact of his non-enrolment. In any event, this ground is, again, independent of the other grounds for cancellation of the visa, that is, failure to achieve satisfactory academic results and failure to meet the attendance requirements.
Case: Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193
Outcome: distinguished
As the s 20 notices in this matter suffered from the vices detected in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 , I invited the parties to present written submissions dealing with that judgment. 36 In Morsed , the appellant claimed that his breach of condition 8202 was due to exceptional circumstances beyond his control. No such issue of circumstances beyond the control of the appellant is relevant here. On that view alone, Morsed is distinguishable. 37 In any event, the cancellation of the student visa in Morsed arose as a result of the automatic effect of s 137J of the Migration Act , consequent upon a s 20 notice. It did not arise, as here, by virtue of the independent operation of s 116 of the Migration Act . 38 Having regard to the foregoing I dismissed the appeal, 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 Marshall. Associate: Dated: 12 April 2006 Counsel for the Appellant: Mr J Levine Solicitor for the Appellant: Issac Brott &amp; Co Counsel for the 1 st Respondent: Mr P Gray Solicitor for the 1 st Respondent: Australian Government Solicitor Date of Hearing: 12 April 2006 Date of Judgment: 12 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/408.html
Case: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Outcome: cited
The discretion to order gross sum costs is in quite general terms and may be exercised whenever the circumstances warrant it: Harrison v Schipp (2002) 54 NSWLR 738 at [21]. The purpose of the rule is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Leary v Leary [1987] 1 WLR 72; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
Case: Harrison v Schipp (2002) 54 NSWLR 738
Outcome: cited
The discretion to order gross sum costs is in quite general terms and may be exercised whenever the circumstances warrant it: Harrison v Schipp (2002) 54 NSWLR 738 at [21]. The purpose of the rule is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Leary v Leary [1987] 1 WLR 72; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
Case: Leary v Leary [1987] 1 WLR 72
Outcome: cited
The discretion to order gross sum costs is in quite general terms and may be exercised whenever the circumstances warrant it: Harrison v Schipp (2002) 54 NSWLR 738 at [21]. The purpose of the rule is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Leary v Leary [1987] 1 WLR 72; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
Case: Chinda Nouv v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FMCA 1101
Outcome: affirmed
A delegate of the Minister refused to grant the permanent visa. That refusal was affirmed on review by the Migration Review Tribunal. An application for judicial review was refused by Connolly FM: Chinda Nouv v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FMCA 1101. The appellant now appeals to this Court. 3 The factual background, the relevant legislation and the terms of the Tribunal's decision are set out in the decision of the learned Magistrate and it is not necessary to repeat them. 4 The appellant's counsel contended that the learned Magistrate erred in that he should have set aside the Tribunal's decision on the grounds that: 1. The Tribunal failed to take into account a mandatory relevant consideration, namely the appellant's travelling to Cambodia to participate in her husband's funeral; 2. The Tribunal misconstrued the visa criteria in that it: (a) failed to fix a point in time at which the visa criteria were to be considered; and (b) failed to take proper account of the effect of the grant of the provisional visa.
Case: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375
Outcome: applied
However, the way with which the Tribunal was required to deal with the factual material before it was affected by the way the case was put. Thus in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 Deane J said: "... it is largely for the decision-maker, in light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." 9 There were before the Tribunal some photographs showing the appellant at the funeral. Also some of the statutory declarations by friends of the appellant made passing reference to her attendance at the funeral. However, in four detailed submissions made to the Tribunal by the appellant's solicitors, totalling 16 pages, the only reference to the attendance at the funeral is in a letter of 22 September 2005 at page 6 where the solicitors say: "In response to some of the issues raised by the Delegate we are instructed: ... 6. The clothing belonging to the applicant's deceased husband was taken to Cambodia by the applicant when she attended his funeral. It is normal for a widow to give her husband's clothing to the poor and this is what she did. ... 10. The deceased left many of his personal papers with the applicant when he went to Cambodia. Copies of these accompany this letter. The applicant says this is consistent with normal arrangements between spouses. The applicant obtained her husband's passport from his mother in Cambodia when she visited at the time of the funeral." 10 Thus the references to the appellant's attendance at the funeral were not only brief, but were incidental to some other issue that was being dealt with. The funeral attendance was not put as something of relevance in itself.
Case: Ho v Minister for Immigration and Multicultural Affairs [2006] FMCA 1285 at [28]
Outcome: considered
As Phipps FM pointed out in the analogous case of Ho v Minister for Immigration and Multicultural Affairs [2006] FMCA 1285 at [28] , the Tribunal may have, and often will have, different and additional evidence bearing on the parties' relationship at the time of the grant of the permanent visa. It must make its own assessment of that evidence. There is no basis in the regulations for saying that it must accept as correct a previous decision based on different evidence. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 10 November 2006 Counsel for the Appellant: J Gibson Solicitors for the Appellant: Clothier Anderson &amp; Associates Counsel for the Respondent: G Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 November 2006 Date of Judgment: 10 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1474.html
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 29
Outcome: cited
This was a consideration the Tribunal was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd 1986) [1986] HCA 40 ; 162 CLR 24 at 29. 7 It is true that in its detailed reasons the Tribunal did not mention the appellant's attendance at the funeral, although it did (at [41]) accept that she "may have experienced sadness at the time of the sponsor's death and ... that she and the sponsor may have been friends or become friends in the process of preparing and pursuing the visa application".
Case: R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-op Ltd (1977) 16 SASR 6
Outcome: cited
Once the new positions of Sous Chef and Chef de Partie had been filled, I am satisfied that the employer no longer required the job previously undertaken by Mr Roberts as Level 5 Supervisor to be done by anyone. Mr Roberts' position had become redundant ( R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-op Ltd (1977) 16 SASR 6 per Bray CJ at 8). However, Mr Roberts was unwilling to give up the position of Level 5 Supervisor. It seems likely that he did not understand that continuing in that position was not an option open to him. 26 The salary that was to be paid to the holder of the position of Chef was less than Mr Roberts was earning in the position of Level 5 Supervisor. Mr Roberts acknowledged that after he was offered the position of Chef on 10 October 2006 he spoke with Mr Osborne and expressed concern about the position's salary but not the need to sign an AWA. I accept that Mr Roberts was unwilling to sign an AWA that provided for an annual salary of $35,000 per annum. However, I am satisfied that he would not have accepted the Chef's position on that salary even if he were not required to sign an AWA. 27 I conclude that the only reasons why Mr Roberts' employment by the Club was terminated were that his position of Level 5 Supervisor became redundant following the implementation of the catering division's restructure and he was unwilling to accept the lower paid position of Chef. The Club has therefore proved that the termination was for reasons that do not include a proscribed reason (s 664 of the Act).
Case: Anderson v Edith Cowan University [1999] FCA 1802
Outcome: cited
The application should be dismissed. Even if Mr McIlroy and Ms St Henry were members of the applicant at the relevant time (and I make no finding with respect to this issue) I am satisfied on the balance of probabilities, taking into account factors including the nature of the action, the respondent's defence, the nature of the subject-matter of the proceeding and the gravity of the matters alleged (including the fact that the claim involves breach of a civil remedy provision), that Mr McIlroy and Ms St Henry were not dismissed by the respondent for prohibited reasons in the meaning of s 793(1)(a) and (o) of the Act . I am satisfied that the presumption that the termination of the employment of Mr McIlroy and Ms St Henry was for a prohibited reason is rebutted by the credible evidence of Ms Burey and Mr Marshall as to the actual reasons for termination. Whether those reasons were "fair" reasons is not relevant the claim of the applicant as pleaded does not require me to consider the fairness or reasonableness of the conduct of the respondent (cf similar comments of Boon JR in Anderson v Edith Cowan University [1999] FCA 1802 at 104). 74 As a result of this finding, it is unnecessary for me to consider whether Mr McIlroy and Ms St Henry were in fact members of the applicant at the relevant times. ORDER 1. The application be dismissed. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 February 2007 Counsel for the Applicant: M Hinson SC and D Kent Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: A Horneman-Wren Solicitor for the Respondent: Franklin Athanasellis Date of Hearing: 8 February 2007 Date of Judgment: 22 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/169.html
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: applied
Mr Horneman-Wren on behalf of the respondent however submitted that in fact the burden of proof was akin to the Briginshaw test ( Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) and therefore required proof to a higher standard than a mere balance of probabilities. 38 As Dixon J said in Briginshaw 60 CLR at 362-363 however: This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues... But consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
Case: Hamberger v CFMEU (2000) 104 IR 45
Outcome: cited
The case before me involves the application of civil remedy provisions, and penalties which can be awarded against the respondent if appropriate. In my view the issue raised by Mr Horneman-Wren may be addressed by recognising that the civil standard of proof - that is, the balance of probabilities is applicable as required by s 140(1) Evidence Act , however in applying the civil standard it is appropriate to take into account the issues prescribed in s 140(2). This does not mean that I am required to apply a higher standard of proof than the "mere balance of probabilities" as submitted by Counsel. It does, however, require me in this case, in applying the civil standard, to take into account the nature of the claim, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. In particular in the context of a civil remedy provision, I take into account the fact and the nature of the penalties which can be awarded against the respondent. This approach is consistent with the approach taken by Nicholson J in Maritime Union of Australia 93 FCR at 65. The duty of the court in such cases to take into account issues specified in s 140(2) has also been recognised in other Federal Court decisions including The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 and Hamberger v CFMEU (2000) 104 IR 45 at 49.
Case: Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
Outcome: cited
The reasoning behind the reversal of the onus of proof was explained in the context of earlier equivalent sections of the Act by Nicholson J in Maritime Union of Australia 93 FCR at 68, citing Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J, where his Honour said: If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason....... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267. (cf recent comments of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [28] ).
Case: Seymour v Saint-Gabain Abrasives Pty Ltd [2006] FCA 1452
Outcome: applied
The reasoning behind the reversal of the onus of proof was explained in the context of earlier equivalent sections of the Act by Nicholson J in Maritime Union of Australia 93 FCR at 68, citing Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J, where his Honour said: If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason....... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267. (cf recent comments of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [28] ). 33 Accordingly, in most cases an explanation of the real reason for dismissal consistent with the absence of a prohibited reason is, in a practical sense, also necessary to rebut the presumption (cf Buchanan J in Seymour [2006] FCA 1452 at [29] ). This explanation must appear in the evidence of the person or persons who made the decision to terminate the employment of the relevant employees. 34 Section 729 of the Act provides: A court hearing a proceeding under a civil remedy provision must apply the rules of evidence and procedure for civil matters. 35 The rules of evidence for civil matters are set out in s 140 of the Evidence Act 1995 (Cth): (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 36 I note that both Nicholson J in Maritime Union of Australia [1999] FCA 899 ; 93 FCR 34 and Buchanan J in Seymour [2006] FCA 1452 recognised that it is for the respondent to prove, on the balance of probabilities, that the termination was not motivated by an impermissible reason. Mr Hinson SC on behalf of the applicant submitted that the standard of proof in this case was the civil standard of the balance of probabilities.
Case: The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454
Outcome: cited
The case before me involves the application of civil remedy provisions, and penalties which can be awarded against the respondent if appropriate. In my view the issue raised by Mr Horneman-Wren may be addressed by recognising that the civil standard of proof - that is, the balance of probabilities is applicable as required by s 140(1) Evidence Act , however in applying the civil standard it is appropriate to take into account the issues prescribed in s 140(2). This does not mean that I am required to apply a higher standard of proof than the "mere balance of probabilities" as submitted by Counsel. It does, however, require me in this case, in applying the civil standard, to take into account the nature of the claim, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. In particular in the context of a civil remedy provision, I take into account the fact and the nature of the penalties which can be awarded against the respondent. This approach is consistent with the approach taken by Nicholson J in Maritime Union of Australia 93 FCR at 65. The duty of the court in such cases to take into account issues specified in s 140(2) has also been recognised in other Federal Court decisions including The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 and Hamberger v CFMEU (2000) 104 IR 45 at 49.
Case: Advent Investors Pty Ltd v Goldhirsch (2001) 37 ACSR 529
Outcome: cited
The principles that can be drawn from these High Court decisions are similarly applicable in respect of the operation of ss 236 and 237 of the Act. It is not a matter of characterising the provisions of ss 236 and 237 as procedural or substantive (which may be relevant in another context (see eg Advent Investors Pty Ltd v Goldhirsch (2001) 37 ACSR 529 per Warren J)), but the question is whether the provisions condition the court's jurisdiction.
Case: American Express International Banking Corporation v Hurley [1985] 3 All ER 564
Outcome: cited
In relation to the Bank, the applicants submitted that the Bank: ...will be liable for the conduct of the Receivers if the Receivers were in fact its agents. If [the Bank] directed or interfered with the Receivers' activities, they will be the agents of [the Bank] (see American Express International Banking Corporation v Hurley [1985] 3 All ER 564 at 568(f) and 571(g); Florgale at [496]). The present case goes "beyond mere consultation or the communication of preferences" by [the Bank] but demonstrates that [the Bank] was "heavily involved in the performance of the Receivers' duties" (see State Bank of New South Wales Ltd v Chia [2000] NSWSC 552 ; (2000) 50 NSWLR 587 at [885-886] ). 111 I accept that if a mortgagee directs the exercise of the powers of a receiver, or interferes with his or her conduct in the realisation of assets, then the usual consequences of the agency relationship between the receiver and mortgagor may be displaced: Florgale 11 VR at [496]; Chia 50 NSWLR at [881]-[886]; American Express International Banking Corporation v Hurley (1985) 3 All ER 564 at 568 and 571.