mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: cited
The first respondent submits that even if there has been a breach of s 91R(3) , the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82 at [104] , [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] , [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] .
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
The appellant has not particularised the alleged breach of s 424AA. The Court below observed, correctly in my view, that no s 424A(1) obligations arose from the Tribunal's appraisal of the Appellant's testimony: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] and SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27] . Section 424AA could only apply in this case to the evidence of the appellant's son. Two matters emerge in that respect. First the testimony given by his son did not, in its terms, constitute a basis for an undermining, denial or rejection of the Appellant's claims. It did not form part of the Tribunal's reasons for decision: SZBYR at [17]. Second, the Tribunal clearly complied with the procedure prescribed by s 424AA. Specifically as the Federal Magistrate observed [22]-[23] the Tribunal explained to the appellant and invited his response to its concerns that: ... it may not accept the son's evidence and may find in any case that his son's evidence was very vague, including that he also could not identify which group the applicant belonged to. ... The appellant stated that he would like more time to comment, but wished to do so at the current hearing. The Tribunal ... considered that he did not reasonably require an adjournment of the hearing. 45 The first respondent submits that even if there has been a breach of s 91R(3) , the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82 at [104] , [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] , [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] .
Case: SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722
Outcome: considered
The first respondent submits, for the following reasons, that s 91R(3) was not engaged in the present case. If the Tribunal had properly considered s 91R(3) it would not have applied it. Section 91R(3) is confined in its operation to sur place claims . The appellant did not make a sur place claim based on his conduct in Australia and therefore s 91R(3) did not arise: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] ; SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10 ; SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 at [17] - [22] . The appellant relied on his conduct in Australia, merely as corroboration of his claims to being a Christian in China. He did not claim to have a fear of persecution in China based on his conduct in Australia. Accordingly, the Tribunal could not have found that the appellant's fears for reason of his Christian conduct in Australia were well-founded and Convention based, because the appellant did not claim to hold such fears based on his conduct in Australia. Accordingly, s 91R(3) had no application. 29 Likewise, the decision of Weinberg J in SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 did not involve a sur place claim. The conduct in that case involved a failure by the appellant whilst in Australia to involve himself in the activities of an Awami League support group in Australia. It is not difficult to appreciate why this did not attract the exclusionary operation of s 91R(3). 30 Weinberg J did refer in obiter to the second-reading speech relating to the introduction of s 91R that subsection (3) was intended to deal with sur place claims. However, the question whether conduct amounting to purported corroborative evidence of alleged refugee status did not arise for consideration in that case. I do not consider that his Honour was expressing a considered opinion as to the reach of s 91R(3).
Case: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Outcome: cited
The appellant has not particularised the alleged breach of s 424AA. The Court below observed, correctly in my view, that no s 424A(1) obligations arose from the Tribunal's appraisal of the Appellant's testimony: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] and SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27] . Section 424AA could only apply in this case to the evidence of the appellant's son. Two matters emerge in that respect. First the testimony given by his son did not, in its terms, constitute a basis for an undermining, denial or rejection of the Appellant's claims. It did not form part of the Tribunal's reasons for decision: SZBYR at [17]. Second, the Tribunal clearly complied with the procedure prescribed by s 424AA. Specifically as the Federal Magistrate observed [22]-[23] the Tribunal explained to the appellant and invited his response to its concerns that: ... it may not accept the son's evidence and may find in any case that his son's evidence was very vague, including that he also could not identify which group the applicant belonged to. ... The appellant stated that he would like more time to comment, but wished to do so at the current hearing. The Tribunal ... considered that he did not reasonably require an adjournment of the hearing.
Case: SZHAY v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 199 FLR 148
Outcome: referred to
This extended construction was applied by the Full Court in SZJGV at [27] where it found that the Tribunal had had regard to the appellant's conduct in Australia, if only for the limited purpose of assessing the credibility of his claim to have been a Falun Gong practitioner in China and to have suffered persecution for having done so. The Full Court held that by so doing the Tribunal contravened s 91R(3) of the Act . This construction of s 91R(3) , extending beyond refugee sur place claims, is consistent with the approach taken by Driver FM in SZHAY v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 199 FLR 148 at [32] to which the Full Court referred with apparent approval in SZJGV at [10].
Case: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648
Outcome: considered
The first respondent submits, for the following reasons, that s 91R(3) was not engaged in the present case. If the Tribunal had properly considered s 91R(3) it would not have applied it. Section 91R(3) is confined in its operation to sur place claims . The appellant did not make a sur place claim based on his conduct in Australia and therefore s 91R(3) did not arise: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] ; SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10 ; SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 at [17] - [22] . The appellant relied on his conduct in Australia, merely as corroboration of his claims to being a Christian in China. He did not claim to have a fear of persecution in China based on his conduct in Australia. Accordingly, the Tribunal could not have found that the appellant's fears for reason of his Christian conduct in Australia were well-founded and Convention based, because the appellant did not claim to hold such fears based on his conduct in Australia. Accordingly, s 91R(3) had no application.
Case: SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10
Outcome: cited
The first respondent submits, for the following reasons, that s 91R(3) was not engaged in the present case. If the Tribunal had properly considered s 91R(3) it would not have applied it. Section 91R(3) is confined in its operation to sur place claims . The appellant did not make a sur place claim based on his conduct in Australia and therefore s 91R(3) did not arise: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] ; SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10 ; SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 at [17] - [22] . The appellant relied on his conduct in Australia, merely as corroboration of his claims to being a Christian in China. He did not claim to have a fear of persecution in China based on his conduct in Australia. Accordingly, the Tribunal could not have found that the appellant's fears for reason of his Christian conduct in Australia were well-founded and Convention based, because the appellant did not claim to hold such fears based on his conduct in Australia. Accordingly, s 91R(3) had no application.
Case: SZMCD v Minister for Immigration and Citizenship [2008] FMCA 1039 
Outcome: cited
Section 424AA does not impose any obligation on the Tribunal. It enables the Tribunal, if it chooses to do so, to give oral particulars of adverse information to an applicant at a hearing that may otherwise need to be given in writing under s 424A(1): SZMCD v Minister for Immigration and Citizenship [2008] FMCA 1039 at [56] . If the Tribunal chooses to give oral particulars of information under s 424AA but fails to comply with the requirements of s 424AA(b) , the consequence is not that it falls into jurisdictional error. The consequence is that s 424A (2A) is not engaged; SZMCD at [68]. This is in light of the Explanatory Memorandum. (The abbreviation "RRT" refers to the Tribunal): ... Section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT's existing obligation under section 424A , in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA , it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the information and seek comments or a response from an applicant under section 424AA , it is not required to give the particulars under section 424A.
Case: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 
Outcome: cited
The Tribunal is not obliged to speculate on claims that did not squarely arise on the material before it and it is not open for the Appellant to now reformulate his claims on an ex post facto basis; NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ; SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265 at [19] ; S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] .
Case: Administration of Papua and New Guinea v Daera [1973] HCA 59 ; (1973) 130 CLR 353
Outcome: applied
Finally, the Commissioner's reference to and reliance upon the parties' prior and subsequent conduct is misplaced. Where, as here, the language in context is not ambiguous, the Court may not look at the prior and subsequent conduct of the parties to interpret the Occupational Licence Agreement: Administration of Papua and New Guinea v Daera [1973] HCA 59 ; (1973) 130 CLR 353 at 446 (per Gibbs J); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 348 (per Mason J) and L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; cf Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 327; Farmer v Honan [1919] HCA 13 ; (1919) 26 CLR 183 at 197. Such conduct cannot be used to generate disputes about the meaning of unambiguous terms. Such an approach would be inconsistent with the " general test of objectivity [that] is of pervasive influence in the law of contract" : Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (No 2) [2004] HCA 55 ; (2005) 218 CLR 471 at [31] - [36] and, in particular at [34] quoting Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549 (per Gleeson CJ).
Case: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99
Outcome: followed
Clause 5.2 cannot be considered in isolation. The whole of the Occupational Licence Agreement is relevant together with the other documents to which it refers and which were executed "contemporaneously": Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748 at [63] - [78] (per North and Dowsett JJ) (collecting and discussing authority for the proposition that contemporaneously executed contracts forming part of the same transaction should be construed as one instrument). It was not suggested that anything turns on the order in which documents were executed or that "contemporaneously" means anything more precise than "bearing the same date". The other documents fitting this description of being executed "contemporaneously" include the documents listed in [19] above as having been executed on 14 December 1994. Further, construction of an agreement as a whole necessarily involves giving effect to each part of it in relation to all other parts of it: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (per Gibbs J) and Wilkie v Gordian Runoff Ltd [2005] HCA 17 ; (2005) 221 CLR 522 at [15] - [16] .
Case: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Outcome: cited
Finally, the Commissioner's reference to and reliance upon the parties' prior and subsequent conduct is misplaced. Where, as here, the language in context is not ambiguous, the Court may not look at the prior and subsequent conduct of the parties to interpret the Occupational Licence Agreement: Administration of Papua and New Guinea v Daera [1973] HCA 59 ; (1973) 130 CLR 353 at 446 (per Gibbs J); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 348 (per Mason J) and L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; cf Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 327; Farmer v Honan [1919] HCA 13 ; (1919) 26 CLR 183 at 197. Such conduct cannot be used to generate disputes about the meaning of unambiguous terms. Such an approach would be inconsistent with the " general test of objectivity [that] is of pervasive influence in the law of contract" : Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (No 2) [2004] HCA 55 ; (2005) 218 CLR 471 at [31] - [36] and, in particular at [34] quoting Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549 (per Gleeson CJ).
Case: Calder v Commissioner of Taxation (2005) 226 ALR 643
Outcome: followed
The process of identifying a 'tax benefit' is prescribed by s 177C. It requires an assessment of what might reasonably be expected to have happened if the scheme had not been entered into or carried out. This process has been described as the identification of the 'alternative postulate': Hart at [66] and Macquarie Finance Ltd v Commissioner of Taxation [2005] FCAFC 205 ; (2005) 146 FCR 77 at [204] . This is an objective assessment: Calder v Commissioner of Taxation (2005) 226 ALR 643 at [95]; Macquarie at [212]; Pridecraft Pty Ltd v Federal Commissioner of Taxation (2004) 213 ALR 450 at [64]-[65].
Case: Cape Flattery Silica Mines Pty Ltd v FCT (1997) 36 ATR 360
Outcome: followed
This distinction between purchase and use explains why interest and rental outgoings are on revenue account, even though each can be said, in one sense, to secure capital advantages, namely a principal sum for use in a business and possession of a structural asset such as land or a building: see Cape Flattery Silica Mines Pty Ltd v FCT (1997) 36 ATR 360 at 373. 87 The Commissioner contended, however, that the Prepayment: (1) formed part of the consideration for the grant of the Casino Licence; (2) was made for the purpose of obtaining a lease of the Permanent Casino Site; and / or (3) was made in order to obtain the exclusivity of the casino licence in the first 12 years of operation, and was therefore an affair of capital. 88 The Commissioner put those contentions on two bases: first, by reference to the transaction documents and secondly, by reference to other "contemporaneous" documents. The contentions are rejected on both bases.
Case: Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748
Outcome: followed
Clause 5.2 cannot be considered in isolation. The whole of the Occupational Licence Agreement is relevant together with the other documents to which it refers and which were executed "contemporaneously": Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748 at [63] - [78] (per North and Dowsett JJ) (collecting and discussing authority for the proposition that contemporaneously executed contracts forming part of the same transaction should be construed as one instrument). It was not suggested that anything turns on the order in which documents were executed or that "contemporaneously" means anything more precise than "bearing the same date". The other documents fitting this description of being executed "contemporaneously" include the documents listed in [19] above as having been executed on 14 December 1994. Further, construction of an agreement as a whole necessarily involves giving effect to each part of it in relation to all other parts of it: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (per Gibbs J) and Wilkie v Gordian Runoff Ltd [2005] HCA 17 ; (2005) 221 CLR 522 at [15] - [16] .
Case: City Link Melbourne Ltd v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69
Outcome: followed
In support of the contention that the Prepayment was in the nature of a capital payment, the Commissioner also relied on the "surrounding circumstances" or "background", arguing that the legal agreement pursuant to which the Prepayment was made did not reflect the whole arrangement between the parties: City Link Melbourne Ltd v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [46] (" City Link (Federal Court) "). The "surrounding circumstances" or "background" were said by the Commissioner to comprise documents temporally proximate to the Transaction Documents containing descriptions of the Prepayment and the benefit sought to be obtained from making it. Three documents in particular were referred to by the Commissioner: an explanatory memorandum produced by Star City's legal advisors on 19 April 1994, three days before Star City made its final offer; a letter written by Star City's legal advisors to the NSW State Revenue Office on 27 April 1994 (five days after Star City made its final offer); and a letter written by Star City to the NSW Treasurer on 13 December 1994, the day before the Transaction Documents were executed: see Annexure at [42]-[44], [50]-[51] and [59]-[60] 101 The "surrounding circumstances" or "background" relied on by the Commissioner is irrelevant to the proper characterisation of the Prepayment because the advantage sought by the Prepayment is capable of identification and characterisation by reference to the Leases and the Occupational Licence Agreement and, if necessary, the Transaction Documents as a whole: City Link (Federal Court) at [44]-[45], approved by Citylink (High Court) at [120], [151] and [154].
Case: Cliffs International Inc v FCT [1979] HCA 8 ; (1979) 142 CLR 140 (Stephens J dissenting)
Outcome: approved
This distinction between acquisition and use was articulated by Dixon J in Sun Newspapers : " whether on the one hand [the payment] is a capitalized sum payable by deferred instalments or on the other hire or rent accruing de die in diem, or at other intervals, for the use of the thing " (363). More recently, the test was re-stated by Stephen J in his dissenting judgment in Cliffs International Inc v FCT [1979] HCA 8 ; (1979) 142 CLR 140 at 160 where his Honour said: "The important distinction between ... [recurrent capital outgoings] ... and instances of leases of land or the licensing of patents is that in those cases rent or royalties are paid for the right to occupy or use the property or rights of another. But here the vendors, upon exercise of the option, retained nothing and the taxpayer thereafter made no use of anything to which the vendors retained any claim." See also Gibbs ACJ in Federal Commissioner of Taxation v South Australian Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 655. 94 The fact that the rent was paid by way of a lump sum does not detract from the fact that rent was paid to secure the use of the Premises for the period to which the payment related. Unlike the vendors in Cliffs International and Colonial, here the State retains title to that part of the profit-yielding structure from which Star City derives its income; the Premises were merely made available for use by SHCP for the duration of the Primary Rental Period. In addition to not receiving title to the Premises at the end of the lease term, SHCP received no option to purchase (whether at a below-market price or otherwise), and it was not suggested that 99 years constitutes all or a major portion of the life of the Premises.