mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SAAS of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 340
Outcome: referred to
The process by which the Tribunal reached its conclusions was the same as that considered by Mansfield J in SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 ; (2002) 124 FCR 182 at [52] - [57] which was later upheld on appeal: see SAAS of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 340 at [15] . The Court can find no error in the findings of Lloyd- Jones FM.
Case: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129
Outcome: followed
The Tribunal found that the appellant engaged in the conduct for the purpose of strengthening his claim to be a refugee. As such, s 91R(3) of the Act applies and the Tribunal was entitled, having made such findings of fact, to determine that the conduct was not bona fide. The factual findings of the Tribunal thus operate to exclude the hypothesis proposed by the appellant. Further, s 91R(3) of the Act creates a reversal of onus of proof, which the appellant did not discharge: see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 at [26] which was approved in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [39] .
Case: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423
Outcome: followed
The Tribunal is not required to conduct the proceedings as if they were a Court hearing: see SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at 425 per Gleeson CJ, delivering the decision of the High Court of Australia said: The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant's claims in a process of administrative merits review of the delegate's decision. For similar observations see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [52] .
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Outcome: referred to
The Tribunal is not required to conduct the proceedings as if they were a Court hearing: see SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at 425 per Gleeson CJ, delivering the decision of the High Court of Australia said: The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant's claims in a process of administrative merits review of the delegate's decision. For similar observations see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [52] .
Case: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
Outcome: followed
The fourth ground of appeal contended that the Tribunal breached its obligation to hear and determine the application and had breached s 424A of the Act. The appellant relied upon the transcript of the Tribunal hearing, noting in particular that the Tribunal questioned a witness relating to his impartiality. The appellant claimed that the issue of impartiality was not translated by the interpreter. His Honour found that there was no evidence to support such claim. His Honour referred to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 in finding that the Tribunal's view of the impartiality of a witness is part of the Tribunal's reasoning process and does not constitute information within the meaning of s 424A(1) of the Act. His Honour found that there was no obligation to provide the appellant with particulars of its opinion of the impartiality of a witness and dismissed this ground of appeal. 12 The fifth ground of review arises out of an interview which was held between Australian officials in Beijing and the appellant's wife. The appellant had claimed that he was not married when he obtained his Preferential Relative (Migrant) visa. However, such claim was shown to be false during the subsequent interview with his wife. The Tribunal drew the inference that the details of such interview would have been conveyed to the appellant by the wife. The appellant challenged the drawing of such inference. 13 Lloyd-Jones FM accepted that the Tribunal could draw the inference contained in the fifth ground of review, and that such inference was reasonably open to the Tribunal on the material before it. There was no need for direct evidence of specific communication before such an inference could have been drawn. 28 The assessment of the credibility of a witness is a matter entirely for the determination of the Tribunal: see Tin [2000] FCA 1109 and does not form information for the purposes of s 424A(1) of the Act. The provisions of the Act are an exhaustive statement of the principles of natural justice and there is no scope for the application of any residue common law principles: see s 422B of the Act. 29 There is no error as claimed, and Lloyd-Jones FM was correct in his conclusion that there was no denial of natural justice. 30 The Tribunal accepted that the appellant engaged in some political activities in Australia but found that any such activities were engaged in for the purpose of enhancing his refugee claim. The Tribunal would pay no regard to such activities because they were activities which were excluded pursuant to s 91R(3) of the Act. The appellant submits that s 91R(3) does not exclude the possibility that an applicant may act with more than one purpose, so that if he or she engages in conduct to which s 91R(3) applies, there may be another purpose which has resulted in the conduct. It is alleged that the Tribunal failed to exclude such possibility of more than one purpose in its determination.
Case: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202
Outcome: referred to
The Tribunal did not accept that the appellant did not know of the interview on 7 May 2003 between Australian Embassy officials in Beijing and the appellant's wife. Lloyd-Jones FM noted the evidence upon which the Tribunal could reach such conclusion, which included the sponsorship of the wife and child by the appellant. Contrary to the claim of the appellant, there was sufficient factual circumstances to warrant the inference by the Tribunal in making such finding: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33] - [35] . Further, the Court accepts the submissions of the Minister that such finding does not bear on the Tribunal's conclusion that the appellant's political activities in Australia were not bona fide.
Case: ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 , 127 FCR 1
Outcome: cited
nature of a certified agreement and the means of enforcement, together with the role of this Court conferred by s 413A, has been the subject of analysis by the Full Court in ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 , 127 FCR 1. Whitlam and Gyles JJ there observed: [34] The argument that the remedies provided by the Act are inadequate to ensure compliance with a certified agreement and that there should be means for enforcing obligations beyond those specifically provided by this statute is contrary to the history of enforcement of industrial obligations, as explained by Madgwick J in Wattyl. The Act has, for some time, reflected the policy of not specifically enforcing industrial obligations, except insofar as express remedies are provided. In any event, the point loses much of its force when consideration is given to ss 131, 170LT and 170LW. This is not the occasion to explore all of the ramifications of those provisions or to decide what role, if any, the courts have to play in enforcement of such provisions. It is sufficient to say that there is no complaint about the operation of the dispute settling mechanism in this case -- it is the result about which complaint is made. There is no need to call in aid the power of a court to make a declaration of right as to the construction of the agreement as that role is expressly dealt with by s 413A of the Act. [35] ... [W]e accept the submission that the Act has created the concept of a certified agreement, has given it statutory force and has also regulated the means by which it may be construed and enforced in accordance with the principle in Josephson v Walker . In our opinion, the statute excludes a court of general jurisdiction of a State or Territory from the field, except insofar as it is expressly included, and is inconsistent with the ability of such a court to make a binding declaration of right as to the effect of a certified agreement. ... See also: McAleer v University of Western Australia (No 3) [2008] FCA 1490 , 171 FCR 499 per Siopis J at [76].
Case: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 , 222 CLR 241
Outcome: applied
12 of the present Agreement is , like clauses in other industrial instruments, to be " understood in the light of its industrial context and purpose ": Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2] , [2005] HCA 10 ; 222 CLR 241 at 246 per Gleeson CJ and McHugh J. Such a provision is to " be read in context " and having regard to " the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it ...": [2005] HCA 10 at [30] , 222 CLR at 253 per Gummow, Hayne and Heydon JJ. In the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].
Case: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208
Outcome: cited
the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].
Case: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211
Outcome: cited
the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353
Outcome: cited
the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].
Case: Kucks v CSR Ltd (1996) 66 IR 182
Outcome: cited
the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].