mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 ; (2008) 167 FCR 578
Outcome: cited
Minister, on the other hand, relied upon the words in item 7(1) "... is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa ... were a visa that had been granted". He contended that this retrospectively deemed the delegate's decision always to have been valid and that, as a result, the tribunal's decision affirming that decision was unimpeachable. The Minister argued that to affirm the decision under review had the effect of leaving the delegate's decision as the only operative decision. He contended that an affirmation by the tribunal of a decision of a delegate has the effect that the original decision of the delegate continues to operate and the later decision of the tribunal does not operate in substitution: Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 ; (2008) 167 FCR 578 at 583 [23] per Tamberlin J, with whom Besanko J agreed at 586 [42]; see also Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587F-588B per North J.
Case: Lesuma v Minister for Immigration and Citizenship [2007] FCA 2106 ; (2007) 99 ALD 514
Outcome: followed
my opinion Direction No 21 does not have that vice. The Minister asserted that it created a rebuttable presumption about the weight to be given to primary considerations that should guide the exercise of decision-makers' discretions in a uniform manner. I agree with Emmett J who said that the terms of Direction No 21 do not contain a requirement that any decision-maker, whether the Minister, a delegate or the tribunal, reach a conclusion that particular conduct of the visa holder is abhorrent: Lesuma v Minister for Immigration and Citizenship (No 2) [2007] FCA 2106 ; (2007) 99 ALD 514 at 517 [11] . I am not satisfied that Direction No 21 exceeded the ambit of the Minister's power to give it under s 499(1). Often decision-makers will be required to take into account or to have regard to, or to give weight to, numerous, sometimes conflicting factors in arriving at decisions by force of legislation. Similarly, in general, the description of a factor as a "primary consideration" or the attribution of weight to be given to a factor will provide an effective guide to decision-makers but will not require them to arrive at a predetermined conclusion. Because par 2.2 requires an overall balancing process to be undertaken by the decision-maker, he or she will be able to address the necessities and circumstances of the individual case.
Case: Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 ; (2002) 118 FCR 326
Outcome: discussed
as French, O'Loughlin and Whitlam JJ pointed out in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 ; (2002) 118 FCR 326 at 346 [68] the source of the tribunal's power to give the correct or preferable decision on a review is s 43 of the Administrative Appeals Tribunal Act . They said: "It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision ... Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa."
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, Mason J explained that in the absence of any statutory indication of the weight to be given to various considerations, it was generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising a statutory power. But he said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no importance. Mason J cautioned that the preferred ground on which that judicial power was to be exercised was that the decision was "manifestly unreasonable". I discussed the principles applicable to a statutory duty of, or requirement for, a decision-maker to take into account or to have regard to factors in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 at [103] - [112] . When the expression "regard must be had to" or like expressions are used in a statute in respect of a particular criterion or factor to be considered by a decision-maker, he or she is bound to treat such a factor as a central or fundamental element in the making of the relevant decision: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobson, Lander and Foster JJ applying Telstra [2008] FCA 1758 at [103] - [112] .
Case: Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 ; (2007) 163 FCR 414
Outcome: followed
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 ; (2007) 163 FCR 414 at 442-444 [105] - [113] , Black CJ, French and Weinberg JJ discussed the construction of s 501 and applied the principles identified in the following passage in Coco v The Queen (1994) 179 CLR 427 at 437. There Mason CJ, Brennan, Gaudron and McHugh JJ said: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights (see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at p 12, per Mason CJ)." They said that application of this principle by the Courts would be likely to enhance the Parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights: Coco 179 CLR at 437-438. In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 370-372 Burchett and Lee JJ discussed (in passages approved in Haneef 163 FCR at 443 [108] and [111]) a statutory predecessor of s 501 that provided that an illegal immigrant was liable to deportation if that person had been convicted of offences and been sentenced to imprisonment for at least one year. They said that the section deprived the persons "caught by it of one of their most precious rights, their right of community". Burchett and Lee JJ said that the making of a deportation order was a plain infringement of liberty and was more so if the law authorising it was retroactive. They said ( Sciascia 31 FCR at 372): "Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation."
Case: Minister for Immigration and Ethnic Affairs v Sciascia (1981) 31 FCR 364
Outcome: followed
said that application of this principle by the Courts would be likely to enhance the Parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights: Coco 179 CLR at 437-438. In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 370-372 Burchett and Lee JJ discussed (in passages approved in Haneef 163 FCR at 443 [108] and [111]) a statutory predecessor of s 501 that provided that an illegal immigrant was liable to deportation if that person had been convicted of offences and been sentenced to imprisonment for at least one year. They said that the section deprived the persons "caught by it of one of their most precious rights, their right of community". Burchett and Lee JJ said that the making of a deportation order was a plain infringement of liberty and was more so if the law authorising it was retroactive. They said ( Sciascia 31 FCR at 372): "Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation."
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
am not satisfied that the tribunal committed any error in the way in which it expressed itself. Decision-makers are allowed considerable latitude in their choice of expression of the reasons they had for determining the matter as they did: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. I reject this ground. Ground 6 Mr Toro Martinez claimed that he had been denied procedural fairness because the tribunal referred to two documents in forming its conclusion that: 'Without more detailed evidence and submissions, one could not draw conclusions about the practical standard of health care that would be available to the applicant in [two named towns], but it seems safe to say that Columbia is not totally devoid of medical services." The two documents were material from the Pan American Health Organisation as to Columbia's health system, the number of public hospitals, doctors and nurses and pages in Volume 2 of a publication "Health in the Americas 2007" which dealt with the State's subsidised health insurance system. It is common ground that those documents were not drawn to Mr Toro Martinez's attention before the tribunal made its decision and he had no opportunity to inspect them, or to make submissions in relation to them. Under s 39(1) of the Administrative Appeals Tribunal Act , the tribunal was required to: "... ensure that every party to a proceeding before the tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."
Case: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: discussed
is a jurisdictional error for an administrative tribunal to ignore relevant material: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. The tribunal must give its reasons for its decision pursuant to s 43(2) of the Administrative Appeals Tribunal Act . The reasons must include the tribunal's findings on material questions of fact together with a reference to the evidence or other material on which those findings were based: s 43(2B). As McHugh, Gummow and Hayne JJ observed in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [68] , in respect of the analogous provision in s 430 of the Migration Act , the tribunal need not make findings on any and every matter of fact objectively material to its decision. They said that s 430: "... requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make , and then set out, some findings additional to those which it actually made." (original emphasis)
Case: Muller v Dalgety &amp; Co Ltd [1909] HCA 67 ; (1909) 9 CLR 693
Outcome: cited
provisions that do create fictions must be carefully construed. The purpose for which the legislature introduced the fiction must be identified by the Court: Muller v Dalgety &amp; Co Ltd [1909] HCA 67 ; (1909) 9 CLR 693 at 696 per Griffith CJ; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65 per Windeyer J; see too Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4 ; (1974) 133 CLR 641 at 655 per Gibbs J. The curative effect of legislative provisions using the statutory fictions created by phrases such as those used in item 7 will usually operate only on the source of invalidity identified in the enactment: cf: Yougarla v Western Australia [2001] HCA 47 ; (2001) 207 CLR 344 at 368 [60] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
Case: Norbis v Norbis [1986] HCA 17 ; (1986) 161 CLR 513
Outcome: discussed
Courts have developed guidelines or principles from time to time that are used in the exercise of discretions in judicial decision-making. As Mason and Deane JJ pointed out in Norbis v Norbis [1986] HCA 17 ; (1986) 161 CLR 513 at 519 it does not follow that, because a discretion is expressed in legislation in general terms, the legislature intends that the Court should refrain from developing rules or guidelines affecting its exercise. They said that such rules can promote consistency in decision-making and diminish the risks of arbitrary and capricious adjudication. I am of opinion that similar considerations inform the giving and content of directions under powers such as s 499(1). It is a feature of parliamentary democracy that government policy should be carried out through the exercise of the executive power which, in turn, is subject to parliamentary scrutiny. The structure of our system of government is that the executive power of the Commonwealth is vested in the Governor-General by s 61 of the Constitution . However, in practice and as a matter of convention that power is exercised by the Queen's Ministers of State for the Commonwealth who administer departments of State pursuant to s 64 of the Constitution . And, s 64 also requires that a Minister may not hold office for longer than three months unless he or she becomes a senator or a member of the House of Representatives. Thus, the exercise of the executive power under Ch II of the Constitution is confided to Ministers who are answerable for their conduct of the executive power in the Parliament. One purpose of the Parliament enacting legislation with broad discretions, such as are found in s 501(2) of the Migration Act , is to accommodate changing government policies over the years. The constitutional scheme of responsible government would be defeated if departmental decision-makers were entirely free to arrive at their own idiosyncratic views, unfettered by the control of the Minister who, by s 64 of the Constitution , is the person who administers a department of State and answers for that administration in the Parliament. Hence, the power to give a written direction under s 499 is a valuable means of the Minister ensuring that officers of his or her department will have appropriate regard to the objectives or policies of the government of the day in the exercise of their powers and functions. I am of opinion that the power in s 501(2) to cancel a visa is capable of being made the subject of a direction made under s 499(1).
Case: NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133
Outcome: cited
court will assume that the legislature intended to act fairly when it construes retrospective legislation to ascertain the extent that the law was intended to operate retrospectively: Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 at 571 [54] per Spigelman CJ. And, there is a general rule that where the legislature alters the rights of persons retrospectively unless the Act clearly so operates, the Court will not construe it to affect rights: cf: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466 at 486C-D per Mason JA: see too NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133 at 161-162 [130]-[132] per Spigelman CJ, with whom Hidden and Latham JJ agreed. The Minister also argued that retrospective legislation may affect existing proceedings. That, of course, is correct. But the result is affected by the principle that the legislation will be read down so as not to have such an operation in the absence of clear words of a contrary statutory intention: see Nutricia 253 ALR at 162 [132] per Spigelman CJ.
Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: followed
tribunal is not required to address every piece of evidence before it, provided that it considers the intergers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 at 641 [47] "the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons." However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued: "It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked."
Case: R v Hughes (2000) 202 CLR 535
Outcome: cited
J observed in Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at 203 [115] that the use of the phrase "as if" always introduces a fiction or a hypothetical contrast, deeming something to be what it is not. The use of phrases such as "is taken to be" and "as if" in legislative provisions like item 7 is "...a convenient device for reducing the verbiage of an enactment": R v Hughes (2000) 202 CLR 535 at 551 [24]. But, as Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ added ( Hughes 202 CLR at 551 [24]): "Perhaps, paradoxically, it is to be expected that this very lack of verbiage will give rise to various textual awkwardness."
Case: Re Brian Lawlor Automotive and Collector of Customs (NSW) (1978) 1 ALD 167
Outcome: followed
the contrasting position, that has actually occurred, the tribunal decided that the correct and preferable decision was the one arrived at by the delegate. It would be an odd result if item 7 operated to validate the latter decision but had no effect on the former. The natural and ordinary meaning of item 7 is that it validates certain decisions of the Minister and his delegates. If it cannot, and in its terms does not, undo other decisions, such as those of the tribunal, I am of opinion that item 7 should not be read to validate other decisions to which it is not expressly directed. However as Brennan J said in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175-176 in a passage approved by Hayne and Heydon JJ in Shi 235 CLR 315 [100]. "A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and this is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise."
Case: Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158
Outcome: discussed
J observed in Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at 203 [115] that the use of the phrase "as if" always introduces a fiction or a hypothetical contrast, deeming something to be what it is not. The use of phrases such as "is taken to be" and "as if" in legislative provisions like item 7 is "...a convenient device for reducing the verbiage of an enactment": R v Hughes (2000) 202 CLR 535 at 551 [24]. But, as Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ added ( Hughes 202 CLR at 551 [24]): "Perhaps, paradoxically, it is to be expected that this very lack of verbiage will give rise to various textual awkwardness."
Case: Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4 ; (1974) 133 CLR 641
Outcome: cited
provisions that do create fictions must be carefully construed. The purpose for which the legislature introduced the fiction must be identified by the Court: Muller v Dalgety &amp; Co Ltd [1909] HCA 67 ; (1909) 9 CLR 693 at 696 per Griffith CJ; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65 per Windeyer J; see too Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4 ; (1974) 133 CLR 641 at 655 per Gibbs J. The curative effect of legislative provisions using the statutory fictions created by phrases such as those used in item 7 will usually operate only on the source of invalidity identified in the enactment: cf: Yougarla v Western Australia [2001] HCA 47 ; (2001) 207 CLR 344 at 368 [60] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
Case: Scorgie v Minister for Immigration and Citizenship [2007] 47 AAR 314
Outcome: cited
the tribunal had referred to five previous decisions of the tribunal in which passages from certain documents were either set out or summarised. Marshall and Lander JJ said there was nothing to suggest that the tribunal failed to comply with s 39(1) merely by referring to a previous (tribunal) decision. They concluded that the previous decisions did not play any part in the tribunal reaching its decision in the matter: Scorgie [2008] FCAFC 101 at [41] . The Full Court approved ( Scorgie [2008] FCAFC 101 at [42] , [67] and [71]) of what the trial judge, Flick J, had said as to the position at common law ( Scorgie v Minister for Immigration and Citizenship [2007] 47 AAR 314 at [7]), namely that a denial of procedural fairness would not be established simply because a decision-maker had referred to evidence given in other proceedings in which he or she had been involved. He said that denial of procedural fairness may be made out if the decision-maker went beyond simply referring to evidence in other proceedings and sought to rely upon that evidence or conclusions previously reached without affording an affected party an opportunity to make submissions.