mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commissioner of State Taxation West Australia v Nechold Pty Limited (1995) 30 ATR 69 Jetwest Limited v Haddican (1992) 2 All ER 545
Outcome: cited
order in the nature of a Mareva injunction in support of a costs order, and even a costs order prior to taxation of costs, is not unprecedented: see Commissioner of State Taxation West Australia v Nechold Pty Limited (1995) 30 ATR 69 at 72(a); see also Jetwest Limited v Haddican (1992) 2 All ER 545 at 548(g). The evidence read establishes, prima facie, a reasonable basis to suppose that, after 14 August 2009, and at a time when the order made that day had been drawn to his attention, if only at the behest of process servers engaged by the Australian Government Solicitor, Mr Owen has embarked upon a process of liquidating assets and so doing with a view to departing the jurisdiction. Of particular note, in that regard, again prima facie, is the offering for sale of a BMW motor vehicle, registration number "TXT", at what, it seems, is a considerable discount from what one might regard as the usual sale price for a vehicle of that make, age and kilometrage ($157,000 compared with an offering for sale of $129,000). Other items of personal furniture also seem to be being offered for sale via the internet by Mr Owen. The amount which is sought by way of freezing of assets is up to $150,000. The time for return of an order is given the ex parte nature of the application made today, necessarily short. It will be 1 October 2009 at 9.30am.
Case: Thiess Watkins White Construction Limited (in liquidation) v Witan Nominees (1985) Pty Limited (1992) 2 QR 452
Outcome: followed
this instance, the application is one in respect of a costs order. I am satisfied that the effect of the order as to costs, which I made on 14 August 2009, is indeed one which subjects Mr Owen to a joint and several liability: see in that regard Thiess Watkins White Construction Limited (in liquidation) v Witan Nominees (1985) Pty Limited (1992) 2 QR 452 , and Trade Practices Commission v Nicholas Enterprises Pty Limited No 3 (1979) 42 FLR 213 at 223 and 224.
Case: Trade Practices Commission v Nicholas Enterprises Pty Limited No. 3 (1979) 42 FLR 213
Outcome: followed
this instance, the application is one in respect of a costs order. I am satisfied that the effect of the order as to costs, which I made on 14 August 2009, is indeed one which subjects Mr Owen to a joint and several liability: see in that regard Thiess Watkins White Construction Limited (in liquidation) v Witan Nominees (1985) Pty Limited (1992) 2 QR 452 , and Trade Practices Commission v Nicholas Enterprises Pty Limited No 3 (1979) 42 FLR 213 at 223 and 224.
Case: Pothuwila v Minister for Immigration and Anor [2008] FMCA 345
Outcome: affirmed
By a notice of appeal filed on 21 April 2008, the appellant has attempted to appeal from a judgment of the Federal Magistrates Court in Pothuwila v Minister for Immigration and Anor [2008] FMCA 345. The judgment was given on 31 March 2008. The learned federal magistrate dismissed the appellant's application to the Federal Magistrates Court and ordered the appellant to pay the costs of the first respondent to that proceeding, also the first respondent to this proceeding, the Minister for Immigration and Citizenship. 2 The history of the proceeding is as follows. The appellant made an application to the relevant department on 1 August 1997 for a visa under the Migration Act 1958 (Cth) ("the Migration Act ") of the kind known as a Sri Lankan (Temporary) (Class TT) visa. The reason for the application appears to have been that a previous visa that had been granted to the appellant had expired on 31 July 1997. A delegate of the then relevant Minister refused to grant the visa. The appellant applied to the Migration Internal Review Office, which affirmed the delegate's decision. 3 The letter by which the appellant was advised of this decision informed the appellant that he needed to make an application for review by the Immigration Review Tribunal within 28 days of the date of the letter. The time period was calculated on the basis of reg 5.03 of the Migration Regulations 1994 (Cth), which was later found to be an invalid regulation. It was also later held by this Court that a failure to give a notice complying with s 66(2) of the Migration Act , because of a failure to state accurately the time limit in which an application to review could be made, led to the conclusion that the obligation imposed by s 66 was never discharged and there was no valid notification of the decision. On this basis, in the absence of a statutory time limit, the application for review of the decision refusing a visa was revived many years later, when it came before the Migration Review Tribunal.
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 (2008) 167 FCR 372
Outcome: referred to
The federal magistrate then proceeded to dismiss the appeal on the basis that the appellant had no reasonable prospect of successfully prosecuting the proceeding. It seems clear that a judgment given on such a basis is an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth), and that the leave of the Court or a judge is therefore required before an appeal can be brought from such a judgment. The relevant provisions of the Federal Court of Australia Act 1976 (Cth) and the relevant principles are set out conveniently in the judgments of Rares and Gordon JJ in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 (2008) 167 FCR 372 at [42] - [72] and [159]-[191] respectively. 7 Accordingly, there seems little doubt that the appellant needed to have leave to appeal. He was so advised both by the Australian Government Solicitor, acting on behalf of the first respondent, and by the registry of the Court itself, but did not file any application for leave to appeal. By O 52 r 5 of the Federal Court Rules , such an application needed to be made within 21 days after the judgment was pronounced, subject to the fixing of any later date. Not only has the appellant not attempted to make any application for leave to appeal, he has not made any application for the fixing of a later date than that prescribed by O 52 r 5, by which he might do so. 8 It was reported to me yesterday that the appellant's daughter came to the registry of the Court, handed over a bundle of material relating to the appellant's health, and informed the registry that the appellant would be unable to appear at the hearing of this proceeding today. The appellant certainly has not appeared in response to his name being called outside the courtroom. The material consists of a letter from the appellant, dated 26 August 2008, to the registrar of this Court, and a number of attachments.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: referred to
In the High Court in QAAH , the majority justices pointed out at [40] that the Court has repeatedly said that proceedings of the Refugee Review Tribunal are administrative in nature, or inquisitorial, and that there is no onus upon an applicant or the Minister. Their Honours referred to a series of authorities in which this statement had been made including Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510: see Abebe at [83] [84] per Gleeson CJ and McHugh J.
Case: Applicant S453 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1106
Outcome: followed
After some debate, I came to the view that the question was "manifestly unsound" and did not require a notice to be given under s 78B: see Applicant S453 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1106 at [36] . 16 I will set out my reasons on that question later. 17 The background facts are set out in the Issues Paper supplied to the Minister to seek his decision on whether Mr Ngaronoa passed the character test and, if not, whether to cancel the visa.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
In summary, the Minister must not act arbitrarily or capriciously. The satisfaction of the decision-maker must be based on findings or inferences of fact that are supported by some probative material or logical grounds: see Eshetu at [145]; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-366.
Case: Black v Minister for Immigration and Citizenship [2007] FCA 1249
Outcome: discussed
The authorities make it clear that the Minister is not bound to proceed by reference to a direction under s 499 but it is open to the Minister to use the direction as a guide: Black v Minister for Immigration and Citizenship [2007] FCA 1249 at [19] ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at [31] . 55 I do not consider that the remarks of Besanko J in Black at [24] [27] support the proposition urged upon me by counsel for Mr Ngaronoa, that the Minister is precluded from considering, in the exercise of the discretion, matters upon which the person was acquitted in criminal proceedings. 56 What must be borne in mind is that the present case is concerned with the exercise of the discretion, not the determination that Mr Ngaronoa failed to satisfy the character test. Whilst it would not have been open to the Minister to determine that Mr Ngaronoa had a substantial criminal record on the basis of charges on which he was acquitted, that was not the question which fell for determination: cf s 501(10). 57 Having satisfied himself that Mr Ngaronoa met the precondition, namely failure to satisfy the character test by reason of the term of imprisonment of four years and six months, the question was whether it was open to the Minister to look to conduct engaged in by Mr Ngaronoa in 2006, regardless of whether that conduct was the subject of a criminal conviction. 58 In my view, the authorities to which I have referred establish that the Minister was not constrained from having regard to "general conduct" provided that it pertained to matters affecting the protection of the Australian community. In my opinion, the matter to which the Minister referred did so pertain. 59 I will deal below with the applicant's second ground, namely the question of whether, in considering the matters on which Mr Ngaronoa was acquitted, the Minister applied the correct standard of proof. 72 Although the Minister based his findings on the matters incidental to the attack on Ms Haug upon the "balance of probabilities", this must be read in light of the well-known warning against over-zealous scrutiny of the decision-maker's reasons. The statements made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272, apply to the reasons of the Minister: see Black at [23]. 80 The burden of weighing these considerations was one for the Minister. It has not been established that the Minister acted outside the terms of his statutory power: see Black at [26]. 81 It was accepted on behalf of Mr Ngaronoa that he had received a summary of the protected information relating to the attack on Ms Haug. It was not contended that the summary was inaccurate or misleading. 82 What was submitted was that the letter, under which the summary was provided, did not indicate how the information contained in the summary might be used by the Minister, or how the Applicant might respond.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: discussed
This ground is based upon a statement in the Minister's reasons that the standard of proof he applied in making his decision was the balance of probabilities, not the criminal standard. Mr Ngaronoa's counsel submitted that the Minister ought to have applied the Briginshaw standard: see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. 12 The third ground is that Mr Ngaronoa was denied procedural fairness in relation to the use that was made of the protected information. Although the substance of the protected information was provided to Mr Ngaronoa, his counsel submitted that he was not told, nor was it apparent on the face of the material, that the conduct would be taken into account in the exercise of the Minister's discretion. 13 Mr Ngaronoa's counsel also contended that this proceeding involves a matter arising under the Constitution or involving its interpretation. A direction was sought for notice to be given to the Attorneys-General of the Commonwealth and States under s 78B of the Judiciary Act 1903 (Cth). 66 Counsel for Mr Ngaronoa submitted that in the context of administrative proceedings, the decision-maker is bound to have regard to the well-known statement of Dixon J in Briginshaw at 361-362. 67 There, his Honour drew attention in the context of curial proceedings, to the requirement that a judge should reach a state of reasonable satisfaction having regard to the seriousness of the allegations and of their consequences. Dixon J also said that "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect references. 68 In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 at [102] [103], Madgwick J considered that the observations of Dixon J in Briginshaw could be applied to a decision made by the Refugee Review Tribunal. However, the decision of the majority judges in the Full Court in QAAH (Wilcox and Madgwick JJ) was reversed by the High Court: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340.
Case: Cheatle v The Queen [1993] HCA 44 ; (1993) 177 CLR 541
Outcome: referred to
The Constitutional question which was said to arise was the "guarantee" in s 80 of the Constitution to a trial by jury on indictment for an offence against any law of the Commonwealth. Reference was made to Cheatle v The Queen [1993] HCA 44 ; (1993) 177 CLR 541 at 552 and Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 292, 301.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 
Outcome: applied
This submission is based upon the principle that procedural fairness:- "... extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion ... which would not obviously be open on the known material." See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 592. 87 In my view, this was sufficient to satisfy the test stated in Alphaone. Mr Ngaronoa was informed in the letter that the Minister could take into account the material stated in the summary of protected information in his decision to cancel the visa. The use to which the Minister could put the information was sufficiently described. This is not a case in which a fresh obligation was enlivened within the test required in Navarrete because Mr Ngaronoa was told how the material could be used.
Case: Haneef v Minister for Immigration and Citizenship [2007] FCA 1273
Outcome: distinguished
The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] . 61 I do not consider that the observations of Spender J in Haneef detract from the conclusion I have reached on the question of relevant considerations. 62 In Haneef , Spender J was concerned with the proper construction of s 501(6)(b) of the Act which states one of the criteria for determining whether a person passes the character test. 63 In particular, the question before Spender J was the proper construction of the composite phrase "has an association with someone else ... who the Minister reasonably suspects has been, or is involved in criminal conduct." His Honour considered that the proper construction of the phrase was to be ascertained from its context and purpose: see [152], [178] [179]. 64 It is true that his Honour came to the view that s 501(6)(b) required an alliance or link between the visa holder and the persons engaged in criminal activity. It is this factor which reflects adversely on the character of the visa holder: see [230]. 65 However, it seems to me that his Honour's conclusion related only to the question of whether an "innocent" association fell within the second criterion of the character test stated in s 501(6)(b). It was not concerned with the breadth of the discretion which is conferred on the Minister in the event that the necessary precondition is met: see [269] [271].
Case: Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161
Outcome: followed
The question is one of statutory construction of s 503A. It may well be that having exercised his discretion to provide a summary of the protected information, the rules of procedural fairness applied: Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161 at [32] [34], [39].
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
Although the Minister based his findings on the matters incidental to the attack on Ms Haug upon the "balance of probabilities", this must be read in light of the well-known warning against over-zealous scrutiny of the decision-maker's reasons. The statements made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272, apply to the reasons of the Minister: see Black at [23].
Case: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 
Outcome: referred to
The authorities make it clear that the Minister is not bound to proceed by reference to a direction under s 499 but it is open to the Minister to use the direction as a guide: Black v Minister for Immigration and Citizenship [2007] FCA 1249 at [19] ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at [31] .
Case: Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268
Outcome: referred to
The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] .
Case: Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264
Outcome: referred to
The Constitutional question which was said to arise was the "guarantee" in s 80 of the Constitution to a trial by jury on indictment for an offence against any law of the Commonwealth. Reference was made to Cheatle v The Queen [1993] HCA 44 ; (1993) 177 CLR 541 at 552 and Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 292, 301. 97 First, to the extent that s 80 provides a "guarantee", the terms of it are very limited. Any guarantee is restricted to a trial on indictment for an offence against any law of the Commonwealth. It does not provide a basis for drawing an implied guarantee that is not expressed in the section: Kingswell at 276-277. 98 Second, Mr Ngaronoa was not tried by a jury for an offence against a law of the Commonwealth. He was tried under State law. 99 Third, what underlies the submission is the proposition that an administrative decision-maker is precluded from looking at factual allegations of criminal conduct on which the person affected was acquitted. That proposition cannot be correct, except insofar as it relates to the threshold character test and s 501(10) of the Act. A different enquiry is involved in the exercise of the Minister's discretion.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
The discretion is not fettered by any express limitation but it must be exercised by reference to conditions identified from the subject matter, scope and purpose of the Act: see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897 ; (2001) 113 FCR 268 at [17] ; Huynh at [73]; see also Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] ; Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 at [189] .
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: referred to
It seems to me to follow that the same approach must be applied to the decision of the Minister to exercise his discretion to cancel a visa. The correct approach in my opinion is that stated by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611, in his review of the relevant authorities at [130] [145]. 71 In summary, the Minister must not act arbitrarily or capriciously. The satisfaction of the decision-maker must be based on findings or inferences of fact that are supported by some probative material or logical grounds: see Eshetu at [145]; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-366.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450
Outcome: distinguished
Counsel for the Minister submitted that in any event the Minister was not obliged to satisfy the requirements of procedural fairness in relation to protected information under s 503A of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450 at [30] , [90] [91]. It would follow, so it was argued, that the Minister was under no obligation to provide a summary and that procedural fairness did not require him to explain the use that could be made of the information. 93 Although the question does not arise in the present case, the consequence of the Minister's submissions is that it would be open to him, for instance, to provide an inaccurate or misleading summary of the protected information without regard to the rules of procedural fairness. I do not consider that this question was decided in Ball and am inclined to the view that the submission must be rejected.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22
Outcome: referred to
That is not to gainsay the proposition that the decision to cancel a visa is a serious one. The practical effect of the decision is that Mr Ngaronoa will be permanently excluded under Australian law from returning here: Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22 at [3] . Nevertheless in the exercise of his discretion, the Minister was entitled to determine that the protection of the Australian community outweighed all other considerations, notwithstanding his view that compassionate considerations weighed against removal.