mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cassim [2000] HCA 50 , 74 ALJR 1404
Outcome: followed
The source of any duty or obligation to seek " more specific information " -- in the circumstances of the present case -- was not identified. Section 427(1)(d), it may be noted, empowers the Tribunal to require the Secretary " to arrange for the making of any investigation ". But that section does not impose any general duty to inquire: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] [14], [2000] HCA 50 ; 74 ALJR 1404. See also Minister for Immigration &amp; Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] , [2001] FCA 274 ; 106 FCR 426 at 445; Gomez v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 480 at [26] , [2002] FCAFC 105 ; 190 ALR 543.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cohen [2001] HCA 10 , 177 ALR 473
Outcome: followed
This ground is understood to impermissibly seek merits review. Jurisdictional error is not normally exposed by mere factual error: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [35] per McHugh J, [2001] HCA 10 ; 177 ALR 473. 27 As such, it is rejected. 28 At the outset of the hearing of the appeal an application was made by Mr Laba Sarkis to appear on behalf of the Appellant. Mr Laba Sarkis is neither a solicitor nor a registered migration agent. The application was opposed by the Respondent Minister and the request was denied.
Case: Sam v Minister for Immigration &amp; Citizenship [2007] FCA 1976
Outcome: cited
A Court "has an inherent right in regulating its own proceedings to allow a person, not being a party or a party's lawyer, to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice": Melaleuca of Australia &amp; New Zealand Pty Ltd v Duck [2005] FCA 1481 at [14] per Bennett J. Mr Laba Sarkis has been granted permission to advocate the interests of parties in other proceedings: SZFCX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 394 at [16] , [2006] FCA 394 ; 90 ALD 634 at 646 7; Sam v Minister for Immigration &amp; Citizenship [2007] FCA 1976 at [6] .
Case: SZFCX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 394 , 90 ALD 634
Outcome: cited
A Court "has an inherent right in regulating its own proceedings to allow a person, not being a party or a party's lawyer, to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice": Melaleuca of Australia &amp; New Zealand Pty Ltd v Duck [2005] FCA 1481 at [14] per Bennett J. Mr Laba Sarkis has been granted permission to advocate the interests of parties in other proceedings: SZFCX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 394 at [16] , [2006] FCA 394 ; 90 ALD 634 at 646 7; Sam v Minister for Immigration &amp; Citizenship [2007] FCA 1976 at [6] .
Case: Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1
Outcome: cited
Counsel for the applicant submitted that what was said respectively by Brennan, Deane and Dawson JJ and by McHugh J in Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 27-9, 32-3 and 71 still provides the relevant test of validity. The test is whether the statutory provisions permitting imprisonment of aliens are "reasonably capable of being seen as necessary for the purposes of deportation". Further, "if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object [of deportation], it will be regarded as punitive in character", per McHugh J at 71.
Case: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 143 FCR 1
Outcome: cited
It is difficult, as counsel acknowledged, to draw any clear and reliable proposition of general applicability from the various judgments in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. However, some members of the High Court made pronouncements in that case (at [51], [53] per Gaudron &amp; Gummow JJ, [63] per McHugh J and [152] per Hayne J) that could support a view that, once a denial of a duty to afford procedural fairness is uncovered in respect of a statutorily authorised administrative decision, the decision is to be treated as unlawful and void. However at least Gaudron and Gummow JJ, at a different point in their joint judgment, hedged their remarks to that effect with qualifications that appear contrary to giving such remarks their full literal force: see [46] and [57]. I am in any case bound by Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 143 FCR 1, a decision of the Full Court of this Court to view Bhardwaj 209 CLR 597 as not standing for what the applicant seeks to draw from it (at [42]). My own view is that, as in most cases, the words used in Bhardwaj 209 CLR 597 are to be regarded as limited to the context of the case in which they were uttered. Among other things Bhardwaj 209 CLR 597 was a case in which there was no discretionary reason to deny relief by way of constitutional writs.
Case: Miller v The Queen (1985) 24 DLR (4 th ) 9
Outcome: cited
If I am wrong about that and damages fall to be assessed, they can only be for the relatively short period until Mr Soh was afforded a hearing which, after his transfer to Silverwater, he was. Mr Soh had previous experience of living among criminals and living to prison discipline, albeit on a prison farm. He was young, assertive, resourceful and strong. He was in any event liable to detention at Villawood or some such place. I should try to avoid parsimony but I cannot think that more than $50,000 damages would be required. In giving that expression of view I assume rather than decide that illegal imprisonment of one kind when, in any case, the applicant would be liable to imprisonment (detention) of another should be held to be within the tort of false imprisonment it strikes me as the probably preferable route for development of the common law: cf Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622; The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452 ; R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Miller v The Queen (1985) 24 DLR (4 th ) 9.
Case: Minister for Immigration &amp; Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: discussed
It is difficult, as counsel acknowledged, to draw any clear and reliable proposition of general applicability from the various judgments in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. However, some members of the High Court made pronouncements in that case (at [51], [53] per Gaudron &amp; Gummow JJ, [63] per McHugh J and [152] per Hayne J) that could support a view that, once a denial of a duty to afford procedural fairness is uncovered in respect of a statutorily authorised administrative decision, the decision is to be treated as unlawful and void. However at least Gaudron and Gummow JJ, at a different point in their joint judgment, hedged their remarks to that effect with qualifications that appear contrary to giving such remarks their full literal force: see [46] and [57]. I am in any case bound by Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 143 FCR 1, a decision of the Full Court of this Court to view Bhardwaj 209 CLR 597 as not standing for what the applicant seeks to draw from it (at [42]). My own view is that, as in most cases, the words used in Bhardwaj 209 CLR 597 are to be regarded as limited to the context of the case in which they were uttered. Among other things Bhardwaj 209 CLR 597 was a case in which there was no discretionary reason to deny relief by way of constitutional writs.
Case: Northern Territory v Mengel (1994) 185 CLR 307
Outcome: cited
However, assuming that to be so, the applicant must, among other things, show both that Mr Furlong's act was invalid or unauthorised, and either that he knew it was so or that he actually intended to cause Mr Soh harm: Northern Territory v Mengel (1994) 185 CLR 307. 117 As to validity for constitutional reasons, I have dealt with this factually in relation to Mr Donatiello and Mr Nicholls. Mr Furlong might well have wished to cause Mr Soh some pain. But Mr Soh needs to show that Mr Furlong's purpose in making the recommendation that he did was punitive and not protective. Notwithstanding that Mr Furlong may have jumped to unjustified conclusions and may have had some private animus to Mr Soh, I am not so persuaded. He wrote the memorandum that he did because Mr Vita, his ACM superior, being told of events, required it in the interests of the protection of Villawood's people and good order. There was some apparently real basis for concern about such matters. He would, in my opinion, have written the memorandum whatever his personal feelings about Mr Soh. 118 As to lack of authority for acting as he did, Mr Furlong had both MSI-157 and Mr Vita's direction to guide him and to rely on.
Case: Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87
Outcome: cited
The Migration Act , it was argued, gives "official[s]" a very broad discretion to detain in a prison; nothing in the Act prevents it being used for punitive purposes. As I understand the submission, the Act cannot, conformably with principle, as enunciated in Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87 at 110, 130 and 126, be read down so as to enable detention subject to usual prison regimens of coercion, regimentation and the human environment of a prison, whether in a prison or otherwise.
Case: Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622
Outcome: cited
If I am wrong about that and damages fall to be assessed, they can only be for the relatively short period until Mr Soh was afforded a hearing which, after his transfer to Silverwater, he was. Mr Soh had previous experience of living among criminals and living to prison discipline, albeit on a prison farm. He was young, assertive, resourceful and strong. He was in any event liable to detention at Villawood or some such place. I should try to avoid parsimony but I cannot think that more than $50,000 damages would be required. In giving that expression of view I assume rather than decide that illegal imprisonment of one kind when, in any case, the applicant would be liable to imprisonment (detention) of another should be held to be within the tort of false imprisonment it strikes me as the probably preferable route for development of the common law: cf Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622; The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452 ; R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Miller v The Queen (1985) 24 DLR (4 th ) 9.
Case: R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58
Outcome: cited
If I am wrong about that and damages fall to be assessed, they can only be for the relatively short period until Mr Soh was afforded a hearing which, after his transfer to Silverwater, he was. Mr Soh had previous experience of living among criminals and living to prison discipline, albeit on a prison farm. He was young, assertive, resourceful and strong. He was in any event liable to detention at Villawood or some such place. I should try to avoid parsimony but I cannot think that more than $50,000 damages would be required. In giving that expression of view I assume rather than decide that illegal imprisonment of one kind when, in any case, the applicant would be liable to imprisonment (detention) of another should be held to be within the tort of false imprisonment it strikes me as the probably preferable route for development of the common law: cf Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622; The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452 ; R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Miller v The Queen (1985) 24 DLR (4 th ) 9.
Case: Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: cited
The making of a declaration is a discretionary remedy. I would, in my discretion, decline to make such a declaration notwithstanding that, if the applicant be correct, it would have some utility in enabling him to mount a claim for damages on what might be the consequent invalidity of the Nicholls decision and the Symons request. Any invalidity of the detention at Silverwater for want of procedural fairness did not last long. Within a couple of months, Mr Soh had the repeated opportunity to say why thenceforth he should not be imprisoned. No case was sought to be made that in relation to the various reviews of his position after he was taken into Silverwater he was not afforded procedural fairness or that the consequent decisions were invalid for unreasonableness or otherwise. The applicant's complaint about the denial of procedural fairness by Mr Nicholls was first made more than eight years later. There was no chance for the respondent to redress that failure; the applicant was long gone from prison, indeed from Australia. There is no adequate explanation for the applicant's delay. The applicant evidently had actual access to private legal advisors. In any case, the NSW Legal Aid Commission provided a capable legal aid service for inmates of NSW prisons and remand centres in 1999-2000, as now. The delay is, in short, unconscionable or "unwarrantable": cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at [149]-[153]; Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at [16] - [17] ; Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [56] ; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] . The essential vice of the denial of procedural fairness is the denial itself. That cannot be remedied now. The public interest can be served by my discussion of the principles and their application to this case, without the necessity for a formal declaration.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
The making of a declaration is a discretionary remedy. I would, in my discretion, decline to make such a declaration notwithstanding that, if the applicant be correct, it would have some utility in enabling him to mount a claim for damages on what might be the consequent invalidity of the Nicholls decision and the Symons request. Any invalidity of the detention at Silverwater for want of procedural fairness did not last long. Within a couple of months, Mr Soh had the repeated opportunity to say why thenceforth he should not be imprisoned. No case was sought to be made that in relation to the various reviews of his position after he was taken into Silverwater he was not afforded procedural fairness or that the consequent decisions were invalid for unreasonableness or otherwise. The applicant's complaint about the denial of procedural fairness by Mr Nicholls was first made more than eight years later. There was no chance for the respondent to redress that failure; the applicant was long gone from prison, indeed from Australia. There is no adequate explanation for the applicant's delay. The applicant evidently had actual access to private legal advisors. In any case, the NSW Legal Aid Commission provided a capable legal aid service for inmates of NSW prisons and remand centres in 1999-2000, as now. The delay is, in short, unconscionable or "unwarrantable": cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at [149]-[153]; Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at [16] - [17] ; Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [56] ; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] . The essential vice of the denial of procedural fairness is the denial itself. That cannot be remedied now. The public interest can be served by my discussion of the principles and their application to this case, without the necessity for a formal declaration.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: cited
The making of a declaration is a discretionary remedy. I would, in my discretion, decline to make such a declaration notwithstanding that, if the applicant be correct, it would have some utility in enabling him to mount a claim for damages on what might be the consequent invalidity of the Nicholls decision and the Symons request. Any invalidity of the detention at Silverwater for want of procedural fairness did not last long. Within a couple of months, Mr Soh had the repeated opportunity to say why thenceforth he should not be imprisoned. No case was sought to be made that in relation to the various reviews of his position after he was taken into Silverwater he was not afforded procedural fairness or that the consequent decisions were invalid for unreasonableness or otherwise. The applicant's complaint about the denial of procedural fairness by Mr Nicholls was first made more than eight years later. There was no chance for the respondent to redress that failure; the applicant was long gone from prison, indeed from Australia. There is no adequate explanation for the applicant's delay. The applicant evidently had actual access to private legal advisors. In any case, the NSW Legal Aid Commission provided a capable legal aid service for inmates of NSW prisons and remand centres in 1999-2000, as now. The delay is, in short, unconscionable or "unwarrantable": cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at [149]-[153]; Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at [16] - [17] ; Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [56] ; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] . The essential vice of the denial of procedural fairness is the denial itself. That cannot be remedied now. The public interest can be served by my discussion of the principles and their application to this case, without the necessity for a formal declaration.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
The making of a declaration is a discretionary remedy. I would, in my discretion, decline to make such a declaration notwithstanding that, if the applicant be correct, it would have some utility in enabling him to mount a claim for damages on what might be the consequent invalidity of the Nicholls decision and the Symons request. Any invalidity of the detention at Silverwater for want of procedural fairness did not last long. Within a couple of months, Mr Soh had the repeated opportunity to say why thenceforth he should not be imprisoned. No case was sought to be made that in relation to the various reviews of his position after he was taken into Silverwater he was not afforded procedural fairness or that the consequent decisions were invalid for unreasonableness or otherwise. The applicant's complaint about the denial of procedural fairness by Mr Nicholls was first made more than eight years later. There was no chance for the respondent to redress that failure; the applicant was long gone from prison, indeed from Australia. There is no adequate explanation for the applicant's delay. The applicant evidently had actual access to private legal advisors. In any case, the NSW Legal Aid Commission provided a capable legal aid service for inmates of NSW prisons and remand centres in 1999-2000, as now. The delay is, in short, unconscionable or "unwarrantable": cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 per McHugh J at [149]-[153]; Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at [16] - [17] ; Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [56] ; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] . The essential vice of the denial of procedural fairness is the denial itself. That cannot be remedied now. The public interest can be served by my discussion of the principles and their application to this case, without the necessity for a formal declaration.
Case: The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452
Outcome: cited
If I am wrong about that and damages fall to be assessed, they can only be for the relatively short period until Mr Soh was afforded a hearing which, after his transfer to Silverwater, he was. Mr Soh had previous experience of living among criminals and living to prison discipline, albeit on a prison farm. He was young, assertive, resourceful and strong. He was in any event liable to detention at Villawood or some such place. I should try to avoid parsimony but I cannot think that more than $50,000 damages would be required. In giving that expression of view I assume rather than decide that illegal imprisonment of one kind when, in any case, the applicant would be liable to imprisonment (detention) of another should be held to be within the tort of false imprisonment it strikes me as the probably preferable route for development of the common law: cf Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622; The King v Bevan; Ex parte Elias and Gordon (1942) 55 CLR 452 ; R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Miller v The Queen (1985) 24 DLR (4 th ) 9.
Case: Parker v Federal Republic of Germany (1997) 95 A Crim R 174
Outcome: considered
The applicants relied upon the following observation of Heerey J in Parker v Federal Republic of Germany (1997) 95 A Crim R 174 at 182 ( Parker ) that: "[A]n obligation to 'record in writing' is satisfied when the person signs or otherwise authenticates a document which has been written, typed or printed by some other person." 23 Parker was concerned with a magistrate's statutory obligation to "record in writing" the extradition offence for which a person was eligible for surrender to the Federal Republic of Germany, under s 19 of the Extradition Act 1988 (Cth). A similar conclusion was reached by the Full Court of this Court in Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, on the issue of whether a memorandum endorsed as "approved" by the Commissioner of Taxation constituted a "direction in writing" by the Commissioner under reg 108(1) of the Public Service Regulations 1935 (Cth). The Court observed, at 350, that "[t]he endorsement of a memorandum with a signification of approval is a familiar method of recording decisions within government".
Case: Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342
Outcome: considered
Parker was concerned with a magistrate's statutory obligation to "record in writing" the extradition offence for which a person was eligible for surrender to the Federal Republic of Germany, under s 19 of the Extradition Act 1988 (Cth). A similar conclusion was reached by the Full Court of this Court in Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342, on the issue of whether a memorandum endorsed as "approved" by the Commissioner of Taxation constituted a "direction in writing" by the Commissioner under reg 108(1) of the Public Service Regulations 1935 (Cth). The Court observed, at 350, that "[t]he endorsement of a memorandum with a signification of approval is a familiar method of recording decisions within government".