mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Maltsin [2005] FCAFC 118 (2005) 88 ALD 304
Outcome: cited
In Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v WAFJ [2004] FCAFC 5 (2004) 137 FCR 30, the Full Court dealt with a case in which, on more than one occasion, the Refugee Review Tribunal had interrupted the evidence of an applicant for a protection visa, accused him of misbehaving, asserted that his evidence could not be believed, and treated him rudely and with sarcasm, to the point where he was likely to have become upset, confused and distressed, and to have been deflected from the presentation of his case. By majority, the Full Court upheld a judgment of a federal magistrate, setting aside the Refugee Review Tribunal's decision, by reason of denial of procedural fairness. In Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Maltsin [2005] FCAFC 118 (2005) 88 ALD 304, another Full Court dealt with the case of an applicant for a visa similar to that sought by Ms Antipova. In that case, similarly to this one, the Tribunal announced in the course of the hearing that it did not have sufficient time to hear all the evidence the applicant wished to give. The Tribunal also interrupted the applicant and prevented him from giving details in the course of his evidence. The Tribunal made repeated references to the need to hurry, and to the shortage of available time. It did not hear all the witnesses who had attended for the purpose of giving evidence on behalf of the applicant. The Full Court held that the resulting decision of the Tribunal was the result of jurisdictional error, which involved a denial of procedural fairness.
Case: Moradian v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170
Outcome: followed
To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act , it does not bind me to hold that Ms Antipova's only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act . In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act , VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170 at [28] , I remain of the view that the words 'in relation to the matters it deals with', appearing in each of ss 51A , 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words 'in relation to the matters it deals with' would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the 'plain words of necessary intendment' required to exclude the requirements of procedural fairness. See Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise. The present case forms a good example of what would result if the view expressed in Lay Lat were to be followed. Assuming that s 360(1) of the Migration Act does not have the meaning that it has in my view, the Tribunal could reduce the time of a hearing arbitrarily as much as it chose, interrupt and curtail the evidence of the applicant constantly, and deprive the applicant of any opportunity to put his or her case, and the applicant would have no redress. It is impossible to imagine that Parliament intended such a drastic result. 98 To the extent to which the views expressed in VXDC and Lay Lat are said to be based on a reading of the explanatory memorandum and the second reading speech relating to the bill by which ss 51A , 357A and 422B were introduced into the Migration Act , I repeat the view I expressed in Moradian at [35]. Those documents do not contain statements specific enough to resolve any ambiguity in those provisions, or to disclose a purpose specific enough to warrant a construction of the provisions that would regard them as excluding the entirety of the principle of procedural fairness described as the 'natural justice hearing rule'.
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: followed
To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act , it does not bind me to hold that Ms Antipova's only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act . In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act , VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170 at [28] , I remain of the view that the words 'in relation to the matters it deals with', appearing in each of ss 51A , 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words 'in relation to the matters it deals with' would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the 'plain words of necessary intendment' required to exclude the requirements of procedural fairness. See Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise. The present case forms a good example of what would result if the view expressed in Lay Lat were to be followed. Assuming that s 360(1) of the Migration Act does not have the meaning that it has in my view, the Tribunal could reduce the time of a hearing arbitrarily as much as it chose, interrupt and curtail the evidence of the applicant constantly, and deprive the applicant of any opportunity to put his or her case, and the applicant would have no redress. It is impossible to imagine that Parliament intended such a drastic result.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: followed
It is therefore necessary to see whether the particular denial of procedural fairness made a difference, in the sense referred to in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147, ie whether the Tribunal's error deprived Ms Antipova 'of the possibility of a successful outcome.' In the present case, the answer is plain. The Tribunal disbelieved Ms Antipova when she said that she was determined to make a life with Mr Petrou from the time she went to live with him on 18 May 2001. To a significant extent, the Tribunal's reasoning in this respect was based on its refusal to accept Ms Antipova's explanation of how she had come to continue with her marriage plans after meeting Mr Petrou, and then abandoned her marriage so soon after she had undertaken it. It was this very question that Ms Antipova was attempting to answer when the Tribunal member interrupted her, on several occasions, and asked her for a less detailed answer. If the Tribunal had been patient enough to listen to the detail, it might well have been persuaded to accept what Ms Antipova said. In other words, the very point on which Ms Antipova lost, because she was disbelieved, is one on which she would have given a fuller explanation, if the Tribunal had permitted her to do so. It cannot be said that the denial of procedural fairness in truncating Ms Antipova's evidence, to fit within a timetable about which she had not been warned, could have made no difference to the outcome of the proceeding. 101 It follows that the performance of the Tribunal's statutory function was affected by the denial of procedural fairness. The Tribunal's decision is therefore tainted by jurisdictional error, either because of its failure to comply with s 360 of the Migration Act , or because of a denial of procedural fairness, which s 357A of the Migration Act does not exclude from consideration. 102 Once the Tribunal had found that Ms Antipova and Mr Petrou had not been in a marriage-like relationship for 12 months before Ms Antipova applied for her visa, it was necessary for the Tribunal to determine whether reg 1.15A(2A)(b) of the Migration Regulations applied. The effect of that provision was that the requirements of reg 1.15A(2)(d) (in this case, the requirement of a mutual commitment to a shared life as husband and wife to the exclusion of all others for a period of 12 months immediately preceding the date of the application for a visa) did not apply if Ms Antipova could 'establish compelling and compassionate circumstances for the grant of the visa.'
Case: Neofotistou v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 919 (2005) 144 FCR 478
Outcome: followed
In Neofotistou v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 919 (2005) 144 FCR 478 at [19] [28], the Court took a view similar to the one I have expressed, with respect to the provisions of reg 3A of the Migration Regulations 1989 (Cth). Regulation 3A(2) provided for the specification of a lesser period than the six-month period of cohabitation prior to the date of application for a visa, required by reg 3A(1), if : '(a) there are exceptional circumstances affecting the persons; and (b) there are compelling reasons for specifying that lesser period.' 107 At [24], North J expressed the view that it was not to be expected that a decision-maker would be required to ignore the current state of affairs, unless the legislation expressly required such an exercise to be undertaken. At [25], his Honour referred to the fact that reg 3A(2) was an ameliorating provision, which suggested that it should be given an expansive, rather than a restrictive, meaning. At [26], his Honour regarded any uncertainty arising from applying the assessment on the facts as they exist at the time of the decision, rather than at the time of the application, as insufficient to outweigh the intended ameliorating purpose of the regulation. His Honour did not refer to Boakye-Danquah . In many respects, the provision with which North J was dealing in Neofotistou was more similar to that with which Wilcox J was dealing in Boakye-Danquah than either is to reg 1.15A(2A) of the Migration Regulations. Despite the fact that North J appears to have been unaware of Boakye-Danquah , I regard Neofotistou as correct, and as supporting the view I take of reg 1.15A(2A). As I have said, Boakye-Danquah is distinguishable, because it dealt with a provision very different from reg 1.15A(2A).
Case: Webb v R [1994] HCA 30 ; (1994) 181 CLR 41
Outcome: followed
Nor does it appear that the Tribunal's decision can be set aside on the ground of bias. The ground was raised, but not argued in detail. The test for ostensible bias as a ground for setting aside a decision of the Tribunal is whether a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question in issue. See Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68 per Deane J. In my view, a fair-minded lay observer, informed as to the material objective facts, who witnessed the Tribunal dealing with Ms Antipova's case, would have been more likely to conclude that the Tribunal had simply not performed its statutory function very well, rather than that it would fail to bring an impartial and unprejudiced mind to the resolution of Ms Antipova's case. The insistence on imposing a time limit, and the associated interruptions and attempts to shorten the evidence, were indicative of a desire to deal with the matter expeditiously, rather than of a desire to find against Ms Antipova, whatever the evidence might reveal. Nothing about the Tribunal's reasoning discloses that it approached the case with a closed mind. 112 For the reasons I have given, the Tribunal's decision is flawed by reason of its jurisdictional error. That error consists of failure to comply with the essential precondition to the exercise of the jurisdiction, provided by s 360(1) of the Migration Act , that the Tribunal invite the applicant to appear before it, to give evidence and present arguments relating to the issues arising in relation to the decision under review. Although the Tribunal gave Ms Antipova such an invitation in form, because of the manner in which it conducted the hearing, there was no such invitation in reality. Alternatively, the Tribunal denied Ms Antipova procedural fairness by the manner in which it conducted the hearing, and the denial of procedural fairness is such as to amount to jurisdictional error. Ms Antipova is entitled to have the decision set aside, and to have the Tribunal rehear her application for review of the decision of the Minister's delegate.
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 (2005) 215 ALR 162
Outcome: cited
Among the relief Ms Antipova seeks is a writ of certiorari, for the purpose of quashing the Tribunal's decision, as well as an order remitting the matter to the Tribunal for determination according to law (in reality, a writ of mandamus, or an order in the nature of mandamus). Relief of these kinds can only be granted against the Tribunal, which is not a party to the proceeding. See SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 (2005) 215 ALR 162 at [43] per McHugh J, [91] per Gummow J, [153] per Kirby J and [180] per Hayne J. It will therefore be necessary for me to make an order joining the Tribunal as the second respondent to the proceeding. It is safe to assume that the Tribunal would follow the usual practice of submitting to any order that the Court might make, save an order for costs against the Tribunal. Service of the application and associated material on the Tribunal can therefore be dispensed with. A writ of certiorari should issue, directed to the Tribunal, bringing the decision into the Court, for the purpose of quashing it. The decision should be quashed. A writ of mandamus should also issue, directed to the Tribunal, requiring it to hear and determine the application of Ms Antipova for review of the decision of the Minister according to law. 114 No reason was advanced, and none appears, why the usual order, that costs follow the event, should not be made. The Minister will be ordered to pay Ms Antipova's costs of the proceeding. I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 19 May 2006 Counsel for the applicant: V A Morfuni SC Solicitor for the applicant: Lily Ong Counsel for the respondent: S Moore Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 30 March 2005 Date of Judgment: 19 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/584.html
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
The question which then arises is whether the disclosure of the AWB Information under s 127(4) requires ASIC to observe procedural fairness not only towards the examinee but also a party in the position of AWB consistent with the principles set out in Johns v ASC [1993] HCA 56 ; (1993) 178 CLR 408. The exercise of the statutory power is conditional upon the observance of the rules of natural justice ( Johns at 470; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 , 591 and Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 , 598), but does that natural justice requirement extend to AWB?
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
The question which then arises is whether the disclosure of the AWB Information under s 127(4) requires ASIC to observe procedural fairness not only towards the examinee but also a party in the position of AWB consistent with the principles set out in Johns v ASC [1993] HCA 56 ; (1993) 178 CLR 408. The exercise of the statutory power is conditional upon the observance of the rules of natural justice ( Johns at 470; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 , 591 and Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 , 598), but does that natural justice requirement extend to AWB?
Case: British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816
Outcome: cited
Secondly, equity may restrain use of confidential information improperly obtained , especially where the information is used as a "springboard for a claim or defence in litigation": Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301 at [15] - [17] . As Emmett J noted in MM , there is nothing to prevent the holder of a claim for privilege making a privilege claim prior to the tendering of evidence against the holder of any information obtained by ASIC in circumstances not giving rise to a waiver: eg ss 76 - 83 of the ASIC Act ; ss 118 and 122 of the Evidence Act 1995 (Cth) and British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816. Put another way, "the right of the holder of the privilege not to have privileged material used in evidence against him or her [or it]" is not affected by the disclosure of the privileged material by a party within the scope of the privilege but not entitled to control its exercise: MM at [38]. This is a natural consequence of the basic principle that only the holder of the privilege may waive it. Moreover, although not applicable in the present case (because the third party here is a corporation, which has no privilege against self-incrimination: Daniels at [31]), that preservation of privilege extends not only to legal professional privilege but also privilege against self-incrimination because the ASIC Act abrogates privilege against self-incrimination (s 68(1)) and then provides a "use immunity" to the examinee in relation to information obtained in a s 19 examination where the requirements of s 68(2) are satisfied: s 68(3) of the ASIC Act . Interestingly, unlike other Commonwealth legislation, the "use immunity" in the ASIC Act only applies to persons in relation to the making of an oral statement or the signing of a record and not to the production of documents: s 76(1)(d) of the ASIC Act ; see also Privilege in Perspective , ALRC Report No 107 (2007) at Ch 7 and in particular, paras [7.65] [7.69] and [7.103] and [7.104].
Case: Commodity Futures Trading Commission v Weintraub [1985] USSC 102 ; 471 US 343 (1985)
Outcome: cited
If, however, ASIC meant to submit not that it could compel a person (here, an employee or former employee) to disclose a third party's (here, a company's) privilege by force of statute, but rather that the person may lack the standing to assert the third party's privilege, then that contention may be accepted. Just as an employee can only waive a corporation's privilege if he or she has authority to do so (typically, where the person is a current officer or director), so too may an employee only assert a claim of privilege belonging to a corporation if he or she has the requisite authority: Commodity Futures Trading Commission v Weintraub [1985] USSC 102 ; 471 US 343 , 348-49 (1985); In re Grand Jury Proceedings [2006] USCA1 234 ; 469 F3d 24 (1 st Cir 2006); Wrench LLC v Taco Bell Corporation 212 FRD 514 , 517 (WD Mich 2002) (collecting cases); see also S McNicol, Law of Privilege (1992) at 161-62 (citing Rochfort v Trade Practices Commission (1982) 153 CLR 134 for the proposition that an employee cannot assert the privilege of self-incrimination on behalf of a corporation [at that time corporations were still thought to have such a privilege] because the privilege is personal to the holder). To put it another way, the ASIC investigator was legally correct when he told counsel for AWB that "[n]either ... could [the employees] make the claim [of privilege on behalf of AWB] nor [could they] waive the claim...": [12] above.
Case: Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284
Outcome: cited
Of course, there cannot be a general rule that a legal representative of the employer or the former employer of the examinee should be permitted to attend to protect the employer's privilege. There may well be circumstances where to do so would jeopardise the investigation: see eg Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at [35] , [38]; see also Rochfort at 145 (Mason J) (stating that request for the production of privileged information should generally be directed to the employer but "the protection of the employer's interests [in the information] must give way to the public interest in the efficient administration of justice in case of collision between the two"). But in the absence of such a circumstance, the voluntary grant by ASIC of a limited right to be present in the manner outlined by counsel for AWB might have forestalled the issues raised in these proceedings.
Case: In re Grand Jury Proceedings [2006] USCA1 234 ; 469 F3d 24 (1 st Cir 2006)
Outcome: cited
If, however, ASIC meant to submit not that it could compel a person (here, an employee or former employee) to disclose a third party's (here, a company's) privilege by force of statute, but rather that the person may lack the standing to assert the third party's privilege, then that contention may be accepted. Just as an employee can only waive a corporation's privilege if he or she has authority to do so (typically, where the person is a current officer or director), so too may an employee only assert a claim of privilege belonging to a corporation if he or she has the requisite authority: Commodity Futures Trading Commission v Weintraub [1985] USSC 102 ; 471 US 343 , 348-49 (1985); In re Grand Jury Proceedings [2006] USCA1 234 ; 469 F3d 24 (1 st Cir 2006); Wrench LLC v Taco Bell Corporation 212 FRD 514 , 517 (WD Mich 2002) (collecting cases); see also S McNicol, Law of Privilege (1992) at 161-62 (citing Rochfort v Trade Practices Commission (1982) 153 CLR 134 for the proposition that an employee cannot assert the privilege of self-incrimination on behalf of a corporation [at that time corporations were still thought to have such a privilege] because the privilege is personal to the holder). To put it another way, the ASIC investigator was legally correct when he told counsel for AWB that "[n]either ... could [the employees] make the claim [of privilege on behalf of AWB] nor [could they] waive the claim...": [12] above.