mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: In re Petition of Douglass 46 NY 42 (1871)
Outcome: cited
I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: &#8226; the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or &#8226; the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E &amp; B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).
Case: R v Kearney; Ex parte Japanangka [1984] HCA 13 ; (1984) 158 CLR 395
Outcome: cited
The issue raised in submission by the applicant is encapsulated historically in the Latin maxim generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail). In my view the submission can be dealt with quickly. The rule of construction inherent in this maxim has its place only where contrariety is manifest: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 52-53, Butler v Attorney-General for the State of Victoria [1961] HCA 32 ; (1961) 106 CLR 268 at 276; R v Kearney; Ex parte Japanangka [1984] HCA 13 ; (1984) 158 CLR 395 at 421. In this case there is no inherent conflict between the operation of s 74B (or indeed Ch 4 Pt 7 Div 1A) on the one hand, and either s 156(3) or s 518(1) on the other. (I will address the applicant's submissions as to the interplay of s 74B and other provisions of Ch 4 Pt 7 later in this judgment.) The enactment of Div 1A subsequent in time to that of s 156(3) and s 518(1) gives rise to no inconsistency.
Case: R v Soneji [2005] 3 WLR 303
Outcome: cited
I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: &#8226; the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or &#8226; the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E &amp; B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).
Case: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45
Outcome: cited
The issue raised in submission by the applicant is encapsulated historically in the Latin maxim generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail). In my view the submission can be dealt with quickly. The rule of construction inherent in this maxim has its place only where contrariety is manifest: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 52-53, Butler v Attorney-General for the State of Victoria [1961] HCA 32 ; (1961) 106 CLR 268 at 276; R v Kearney; Ex parte Japanangka [1984] HCA 13 ; (1984) 158 CLR 395 at 421. In this case there is no inherent conflict between the operation of s 74B (or indeed Ch 4 Pt 7 Div 1A) on the one hand, and either s 156(3) or s 518(1) on the other. (I will address the applicant's submissions as to the interplay of s 74B and other provisions of Ch 4 Pt 7 later in this judgment.) The enactment of Div 1A subsequent in time to that of s 156(3) and s 518(1) gives rise to no inconsistency.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: considered
Whether or not to grant an extension of time within which to appeal is a matter for the exercise of a discretionary power conferred by O 52 r 15(2). The terms in which that rule confers the discretionary power are such that the only consideration which is expressed to be relevant to its exercise is that "special reasons" must exist. Obviously enough, those "special reasons" must be found in the circumstances of the particular case. Something in the circumstances of one case that provides a "special reason" distinguishing that case from the general position may not when considered against the different context of the circumstances of another. The occasion for the exercise of the power is thus flexible. In Jess v Scott (1986) 12 FCR 187 , at 196 the Full Court, after a review of authority, repeated a cautionary note which had earlier been sounded against the entanglement of a discretionary power to relax the requirement of a general rule, " in a web of rules spun out of the Court's discretionary decisions ". 8 This cautionary note sounded, factors to which it is nonetheless usual to have regard are the length of the delay in compliance with the specified time for the lodgement of a notice of appeal, the explanation, if any, for the delay, what prejudice, if any, might be occasioned by the grant of an extension (although mere absence of prejudice is not determinative) and the merits of the proposed appeal. 9 The Applicant was represented (using the relevant letterhead as a guide) by a dual qualified solicitor and migration agent in the proceedings before the Tribunal and by that same person, acting in her capacity as a solicitor, as well as counsel in the proceedings before the Federal Magistrates Court. He appeared on his own behalf in the application to this Court, assisted by a Court appointed interpreter.
Case: Re Lusink; Ex Parte Shaw (1980) 55 ALJR 12
Outcome: considered
Prior authority counsels that to overturn a decision even on the basis of apprehended bias is no light thing: Re Lusink; Ex Parte Shaw (1980) 55 ALJR 12 , at 14B (Gibbs ACJ); s 140 (2) of the Evidence Act 1995 . It is also salutary to remember that the (in this case) administrative officer in respect of whose decision such an allegation is made is not heard from when the merits of that allegation fall for hearing and determination.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1
Outcome: considered
That it is no part of the jurisdiction consigned to the Federal Magistrates Court to reach its own conclusion with regard to the merits of the applicant's protection visa application is unquestionably correct. A fortori that is so in this Court on appeal. It is axiomatic that the limits of the role consigned to a court conducting the judicial review of an administrative decision must firmly be kept in mind and respected in a principled way. The definitive, contemporary, Australian exposition in this regard is that offered by Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1 , at 35-36. "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 45 Yet the solicitation made in the Applicant's judicial review application was not for the court to reach any conclusion at all on the merits of his protection visa application. Rather, it was objectively to examine in their totality the findings which the Tribunal had made in reaching its conclusion and the reasons for those findings in light of the material before the Tribunal, including the way in which those reasons were expressed. Viewed in this context, collectively and cumulatively, not individually, what this was said to reveal was a tendency or predisposition towards a particular result, an objective possibility of bias. This is the end to which paragraph "a" of the particulars given under ground 1 of the judicial review application is directed. 46 There is no necessary antipathy between the advancing of such an apprehended bias case and a concession that, viewed in isolation, one of many findings of an administrative tribunal might reasonably have been made.
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Outcome: considered
Given the role consigned to the Tribunal by the Migration Act 1958 and the nature of the case of apprehended bias that the applicant sought to make, the following passage from the judgment of Allsop J (as his Honour then was), Moore and Tamberlin JJ agreeing, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 is, subject to one necessary qualification arising from the particulars of challenge in the present case, apposite: "17 To identify the obligation of the Tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: Ebner at 345 at [7]. 18 Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws at 90; Ebner at 343-44; Jia Legeng at 563-64. 19 Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Jia Legeng at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality." (Internal footnotes omitted).
Case: Johnson v Johnson (2000) 201 CLR 488
Outcome: considered
It has been said that there is no error of law merely in making a wrong finding of fact. Likewise, it may be accepted that an administrative tribunal is not obliged to refer in its reasons to every item of evidentiary material placed before it and that its reasons should not be read narrowly and with an eye for error. In this case, the Applicant did have an association with a particular individual. So much was "apparent" to the Tribunal. Further, the Tribunal knew, because it was expressly told, that this particular individual had been accepted by the Tribunal (differently constituted) as a member of the Falun Gong movement in Australia. It was not correct to find that the Applicant had no association at all with the movement in Australia. The Applicant's assertion of his association with the known practitioner was corroborated by the evidence from his migration agent. The Applicant's evidence was that the nature of the association was not that of social acquaintance but rather that of fellow adherents. His migration agent's evidence also at least raised for consideration an inference that this was indeed the nature of the association. "Objectified" though through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia Legeng at 564; Johnson v Johnson (2000) 201 CLR 488 , 493, it is quite possible to regard this error of fact and the omission to consider the ramifications of the asserted nature and quality of the association, having regard to the circumstances of the referral, as an error and omission in respect of an "inconvenient truth".
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: considered
Disquieting though the Tribunal's conception of what is necessary to evidence a religious belief may be, the conclusion which was reached in relation to this applicant's knowledge of Falun Gong may not, viewed in isolation and in the sense described by Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, be so unreasonable that no reasonable tribunal could have so concluded. Viewed against the broader context of the way in which the Tribunal has dealt with other issues, the deference that would ordinarily be conceded on judicial review to such a conclusion is challenged by a distinct, objective possibility of a belief on the part of the Tribunal that someone could not be a Falun Gong practitioner without an ability, irrespective of educational attainment, to engage in philosophical discourse about the movement, that this belief was brought to the determination of the application and that it was applied without giving consideration to the nature of the applicant, the knowledge of the movement and, particularly, an association with an Australian resident Falun Gong practitioner that he in fact had.
Case: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 
Outcome: applied
This argument has a number of hurdles in the way of raising unlawful detention to a level of being a cause of action with reasonable prospects of success: (1) First, as Gleeson CJ, Gummow, Hayne and Heydon JJ observed in Ruddock v Taylor at [40], a majority of the High Court in Shaw held that Re Patterson is not to be understood as overruling Nolan v Minister for Immigration &amp; Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178, but even it were to be so understood "... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... Patterson said nothing about the validity of s 189." (2) Second, as noted by the majority in Shaw (at [35]), in Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 four members of the High Court agreed that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. A little later (at [39]) the majority said: "That case [Re Patterson] henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister." See too the respondents' submissions at [8(8)] [8(10)] above. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. As Sackville J, with whom Foster and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, observed at 594G: "In the absence of a doctrine of prospective overruling, changes in the law offered by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law. Doubtless from a historical perspective, this owes a good deal to the declaratory theory of law ..."
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162
Outcome: cited
This argument has a number of hurdles in the way of raising unlawful detention to a level of being a cause of action with reasonable prospects of success: (1) First, as Gleeson CJ, Gummow, Hayne and Heydon JJ observed in Ruddock v Taylor at [40], a majority of the High Court in Shaw held that Re Patterson is not to be understood as overruling Nolan v Minister for Immigration &amp; Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178, but even it were to be so understood "... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... Patterson said nothing about the validity of s 189." (2) Second, as noted by the majority in Shaw (at [35]), in Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 four members of the High Court agreed that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. A little later (at [39]) the majority said: "That case [Re Patterson] henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister." See too the respondents' submissions at [8(8)] [8(10)] above. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. As Sackville J, with whom Foster and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, observed at 594G: "In the absence of a doctrine of prospective overruling, changes in the law offered by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law. Doubtless from a historical perspective, this owes a good deal to the declaratory theory of law ..."
Case: Nolan v Minister for Immigration &amp; Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178 
Outcome: cited
This argument has a number of hurdles in the way of raising unlawful detention to a level of being a cause of action with reasonable prospects of success: (1) First, as Gleeson CJ, Gummow, Hayne and Heydon JJ observed in Ruddock v Taylor at [40], a majority of the High Court in Shaw held that Re Patterson is not to be understood as overruling Nolan v Minister for Immigration &amp; Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178, but even it were to be so understood "... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... Patterson said nothing about the validity of s 189." (2) Second, as noted by the majority in Shaw (at [35]), in Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 four members of the High Court agreed that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. A little later (at [39]) the majority said: "That case [Re Patterson] henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister." See too the respondents' submissions at [8(8)] [8(10)] above. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. As Sackville J, with whom Foster and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, observed at 594G: "In the absence of a doctrine of prospective overruling, changes in the law offered by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law. Doubtless from a historical perspective, this owes a good deal to the declaratory theory of law ..."