mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: cited
On behalf of the Minister my attention was drawn to a number of prior authorities which bear upon the construction of the word "information", as it appears in s 424A, and on the construction generally of that section. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at 1196, para 18, the following passage appears in the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ: Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the Appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of paragraph (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the Appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information." Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at 477, para 24 that the word "information": "does not encompass the Tribunal's subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc." If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons, but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The Appellants were thus correct to concede that the relevant "information" was not to be found in circumstances or disbelief, as opposed to the text of the statutory declaration itself.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471
Outcome: cited
On behalf of the Minister my attention was drawn to a number of prior authorities which bear upon the construction of the word "information", as it appears in s 424A, and on the construction generally of that section. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at 1196, para 18, the following passage appears in the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ: Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the Appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of paragraph (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the Appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information." Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at 477, para 24 that the word "information": "does not encompass the Tribunal's subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc." If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons, but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The Appellants were thus correct to concede that the relevant "information" was not to be found in circumstances or disbelief, as opposed to the text of the statutory declaration itself.
Case: Minister for Immigration v Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: cited
Earlier in time, in their joint judgment in Minister for Immigration v Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at pages 595-596, para 123, Merkel and Hely JJ observed: Accordingly, the remaining issue is whether the relevant country information was information that fell within the exclusion in s 424A(3)(a) because it "is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". The information was not specifically about the first respondent or another person. It was, however, about a class of persons: namely, the persons in Bangladesh who are likely to be targeted for violence by their political enemies. Significantly, the RRT found that the first respondent was not a member of that class. Without reference to authority, and applying a literal meaning to the words used in s 424A(3)(a), the relevant country information can be characterised as information that is not specifically about the appellant or another person and is not about a class of persons of which the applicant or the other person is a member. On that basis the information would not be excluded under s 424A(3)(a) and would therefore be required to be given under s 424A(1). 9 Later in their joint judgment at pages 599-600, para 138, their Honours further observed: As is demonstrated by the differences of opinion within the Court to which we have referred, s 424A is not incapable of a construction that gives effect to the intention of the legislature. Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14]. It follows that the Magistrate was in error in failing to find that the relevant country information fell within the exclusion in s 424A(3)(a), and in finding that the RRT failed to comply with s 424A(1).
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
Observations made by Allsop J, as his Honour then was, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 262, para 216 also serve as a reminder of the need, in relation to the application of s 424A in particular cases, to read the reasons of the Tribunal as a whole, in order to understand whether particular "information" truly provided the "reason" for the Tribunal's decision. 11 When one reads the reasons for decision of the Refugee Review Tribunal one sees the following paragraphs which in the circumstances of the present case are material. At appeal book page 90: As put to the applicant in the course of the hearing, generally speaking, members of the Hindu community in India are not ill-treated. In consideration of the evidence as a whole, the Tribunal does not accept that the applicant has a political, ethnic/racial or a religious profile that means he has suffered any persecution as contemplated by the Convention or that there's a real chance of this occurring to the applicant in the reasonably foreseeable future. The Tribunal appreciates that there are religious based tensions in India. However, on balance, independent country information indicates that whilst there are problems in some areas, the Indian Constitution provides for freedom of religion and that the government generally respected this right in practice etcetera. 12 Further, at appeal book page 91, the Tribunal stated: In essence, the Tribunal is not satisfied that there are Convention reasons as to why the applicant should not return to India. In consideration of the evidence as a whole, the Tribunal does not accept that the applicant has a political, ethnic/racial or a religious profile that means that there is a real chance of persecution as contemplated by the Convention occurring to the applicant in the reasonably foreseeable future. Notably and by his own admission, the applicant wants to stay in Australia to work, raising serious doubts about his claims of persecution. In sum, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. 13 The Tribunal's reasons are very detailed indeed. Reading them as a whole, one sees that influences on the conclusions reached in the passages which I have quoted were an assessment by the Tribunal of the male Appellant's credibility, having regard to evidence which he gave before the Tribunal and independent country information. 14 The authorities to which I have made reference make it plain that the country information does not constitute "information" for the purposes of s 424A and further, that the Tribunal's views in relation to credibility do not constitute "information". Those views do not seem to have been informed by reference to anything provided in the initial visa application. Thus, the question as to whether the exclusion found in s 424A(3) as it stood prior to the insertion of s 424A(3)(ba) is not raised for consideration.
Case: Calder v Federal Commissioner of Taxation (2005) 61 ATR 267
Outcome: applied
Section 177D(b) requires the decision-maker to consider the eight matters referred to in the paragraph, and those matters alone, and to decide on the balance of probabilities if a certain conclusion would be drawn: Peabody v Commissioner of Taxation (1993) 40 FCR 531 (' Peabody ') at 541 per Hill J (Ryan and Cooper JJ concurring); Calder v Federal Commissioner of Taxation (2005) 61 ATR 267 (' Calder ') at 290 [91]. The conclusion to be drawn is, in this case, as to the relevant taxpayer's purpose and by reason of s 177A(5) that means his or her dominant purpose. A relevant taxpayer may have more than one purpose and one of his or her purposes may be to obtain commercial benefits. However, if, having regard to the matters in s 177D(b) , his or her dominant purpose is to obtain a tax benefit in connection with the scheme, then Part IVA applies even if one of the relevant taxpayer's other purposes is to obtain commercial benefits: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 (' Spotless ') at 415-416; Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 (' Hart ') at 227 [16] per Gleeson CJ and McHugh J; Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 (' Sleight ') at 229-230 [67] and 238-239 [113] per Hill J (with whom Hely J agreed); Calder at 291 [92]) . The question is to be determined objectively in the sense that the question is not as to the relevant taxpayer's subjective intention and purpose: Spotless at 421-422, 424; Hart at 233 [37], 243 [65] per Gummow and Hayne JJ; Peabody at 542; Calder at 291-292 [96]. What these propositions mean in this case is that the applicant's subjective purpose in entering into the scheme, even if a commercial one, is not of itself relevant. Furthermore, a decision-maker may conclude, after having regard to the matters in s 177D(b) , that the applicant had a commercial purpose in entering into the scheme but that will not assist him if it is otherwise concluded that his dominant purpose in entering into the scheme was to obtain a tax benefit in connection with the scheme.
Case: Commissioner of Taxation v Cooke (2004) 55 ATR 183
Outcome: considered
The applicant referred to the decision of Stone J in Cooke v Federal Commissioner of Taxation (2002) 51 ATR 223 and submitted that arrangements of which the taxpayer is unaware are not part of the scheme for the purposes of s 177D(b) and therefore should not be considered when addressing the matters in s 177D(b). However, on appeal in Commissioner of Taxation v Cooke (2004) 55 ATR 183 the Full Court of this Court did not agree. The Court said (at 216 [88]): 'The primary judge found that the evidence of the respondents was to the effect that at the time of making their respective investments, they knew nothing about the transactions identified in the emphasized passage in the preceding paragraph. Upon that footing, her Honour accepted the submission of the respondents that those transactions could not be part of any scheme, and purported to apply the dictum of Blanshard J of the New Zealand Court of Appeal in Commissioner of Inland Revenue v BNZ Investments Limited (2001) 20 NZTC 17 at [103] to the effect that a taxpayer's ignorance of the arrangements the subject of an income tax avoidance scheme renders the New Zealand anti-avoidance legislation unavailable to the New Zealand revenue authority. However as was pointed out in Howland-Rose at [134], Part IVA of the Tax Act is distinguishable from the New Zealand legislation in that regard. Thus in Federal Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235, in the joint judgment of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ at [95], it was pointed out that "[o]ne of the reasons for making s 177D turn upon the objective matters listed in the section, it may be inferred, was to avoid the consequence that the operation of Part IVA depends upon the fiscal awareness of a taxpayer".'
Case: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404
Outcome: considered
Section 177D(b) requires the decision-maker to consider the eight matters referred to in the paragraph, and those matters alone, and to decide on the balance of probabilities if a certain conclusion would be drawn: Peabody v Commissioner of Taxation (1993) 40 FCR 531 (' Peabody ') at 541 per Hill J (Ryan and Cooper JJ concurring); Calder v Federal Commissioner of Taxation (2005) 61 ATR 267 (' Calder ') at 290 [91]. The conclusion to be drawn is, in this case, as to the relevant taxpayer's purpose and by reason of s 177A(5) that means his or her dominant purpose. A relevant taxpayer may have more than one purpose and one of his or her purposes may be to obtain commercial benefits. However, if, having regard to the matters in s 177D(b) , his or her dominant purpose is to obtain a tax benefit in connection with the scheme, then Part IVA applies even if one of the relevant taxpayer's other purposes is to obtain commercial benefits: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 (' Spotless ') at 415-416; Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 (' Hart ') at 227 [16] per Gleeson CJ and McHugh J; Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 (' Sleight ') at 229-230 [67] and 238-239 [113] per Hill J (with whom Hely J agreed); Calder at 291 [92]) . The question is to be determined objectively in the sense that the question is not as to the relevant taxpayer's subjective intention and purpose: Spotless at 421-422, 424; Hart at 233 [37], 243 [65] per Gummow and Hayne JJ; Peabody at 542; Calder at 291-292 [96]. What these propositions mean in this case is that the applicant's subjective purpose in entering into the scheme, even if a commercial one, is not of itself relevant. Furthermore, a decision-maker may conclude, after having regard to the matters in s 177D(b) , that the applicant had a commercial purpose in entering into the scheme but that will not assist him if it is otherwise concluded that his dominant purpose in entering into the scheme was to obtain a tax benefit in connection with the scheme.
Case: Cooke v Federal Commissioner of Taxation (2002) 51 ATR 223
Outcome: considered
The applicant referred to the decision of Stone J in Cooke v Federal Commissioner of Taxation (2002) 51 ATR 223 and submitted that arrangements of which the taxpayer is unaware are not part of the scheme for the purposes of s 177D(b) and therefore should not be considered when addressing the matters in s 177D(b). However, on appeal in Commissioner of Taxation v Cooke (2004) 55 ATR 183 the Full Court of this Court did not agree. The Court said (at 216 [88]): 'The primary judge found that the evidence of the respondents was to the effect that at the time of making their respective investments, they knew nothing about the transactions identified in the emphasized passage in the preceding paragraph. Upon that footing, her Honour accepted the submission of the respondents that those transactions could not be part of any scheme, and purported to apply the dictum of Blanshard J of the New Zealand Court of Appeal in Commissioner of Inland Revenue v BNZ Investments Limited (2001) 20 NZTC 17 at [103] to the effect that a taxpayer's ignorance of the arrangements the subject of an income tax avoidance scheme renders the New Zealand anti-avoidance legislation unavailable to the New Zealand revenue authority. However as was pointed out in Howland-Rose at [134], Part IVA of the Tax Act is distinguishable from the New Zealand legislation in that regard. Thus in Federal Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235, in the joint judgment of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ at [95], it was pointed out that "[o]ne of the reasons for making s 177D turn upon the objective matters listed in the section, it may be inferred, was to avoid the consequence that the operation of Part IVA depends upon the fiscal awareness of a taxpayer".'
Case: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471
Outcome: cited
There is no doubt that, as the Tribunal member found, the round-robin arrangements were legally effective: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 at 486-487 [46] - [47] . The applicant gave evidence that he was not aware of the round-robin arrangements, but the Tribunal member did not make a finding as to whether the applicant was or was not aware of the arrangements. He referred to the applicant's evidence without disapproval and it is appropriate for me to proceed on the basis that the applicant was not aware of the arrangements.
Case: Peabody v Commissioner of Taxation (1993) 40 FCR 531
Outcome: considered
Section 177D(b) requires the decision-maker to consider the eight matters referred to in the paragraph, and those matters alone, and to decide on the balance of probabilities if a certain conclusion would be drawn: Peabody v Commissioner of Taxation (1993) 40 FCR 531 (' Peabody ') at 541 per Hill J (Ryan and Cooper JJ concurring); Calder v Federal Commissioner of Taxation (2005) 61 ATR 267 (' Calder ') at 290 [91]. The conclusion to be drawn is, in this case, as to the relevant taxpayer's purpose and by reason of s 177A(5) that means his or her dominant purpose. A relevant taxpayer may have more than one purpose and one of his or her purposes may be to obtain commercial benefits. However, if, having regard to the matters in s 177D(b) , his or her dominant purpose is to obtain a tax benefit in connection with the scheme, then Part IVA applies even if one of the relevant taxpayer's other purposes is to obtain commercial benefits: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 (' Spotless ') at 415-416; Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 (' Hart ') at 227 [16] per Gleeson CJ and McHugh J; Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 (' Sleight ') at 229-230 [67] and 238-239 [113] per Hill J (with whom Hely J agreed); Calder at 291 [92]) . The question is to be determined objectively in the sense that the question is not as to the relevant taxpayer's subjective intention and purpose: Spotless at 421-422, 424; Hart at 233 [37], 243 [65] per Gummow and Hayne JJ; Peabody at 542; Calder at 291-292 [96]. What these propositions mean in this case is that the applicant's subjective purpose in entering into the scheme, even if a commercial one, is not of itself relevant. Furthermore, a decision-maker may conclude, after having regard to the matters in s 177D(b) , that the applicant had a commercial purpose in entering into the scheme but that will not assist him if it is otherwise concluded that his dominant purpose in entering into the scheme was to obtain a tax benefit in connection with the scheme.
Case: Amadio Pty Ltd v Henderson (1998) 81 FCR 149
Outcome: cited
Another instance of an appropriate case is where one party has unreasonably refused an offer to compromise. The principle is derived from Calderbank v Calderbank [1975] 3 All ER 333. A party may set up a situation in which an award of indemnity costs is possible by making a reasonable offer of compromise in what is described as a "Calderbank letter", containing the terms of the offer and signifying that the letter will be relied upon to found an application for costs on an indemnity basis in the event that it turns out that the offer ought to have been accepted. To some extent, O 23 of the Federal Court Rules now codifies the circumstances in which refusal of an offer of compromise will found an application for indemnity costs. The area of law has become beset by technicality, much of which appears to me to be unnecessary. Arguments were raised in the present case about whether letters written by one party or another did or did not fit within what the authorities would regard as a Calderbank letter. In particular, it was said that there must be a true offer to compromise, involving the giving of something, and not merely a demand that the other party capitulate. I am by no means certain that this is a universal rule. Whatever the terms of any letter, or other means of conveying an offer of compromise, the question at heart must remain whether the unsuccessful party to the case pursued it unreasonably, having regard to the circumstances at any particular time. As the Full Court said in Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 259: It was argued that conditional offers should not have been treated by his Honour as Calderbank offers for the purpose of ordering indemnity costs. It is to be emphasised that the costs discretion is broad and is to be exercised in circumstances that will vary considerably from case to case. Whilst the criteria used in analogous circumstances will be of assistance it is simply wrong...to use such criteria as rules or tests governing the exercise of the discretion. Thus, an "imprudent" refusal or a "plainly unreasonable" refusal to accept an offer of settlement might, having regard to all the circumstances of the case, warrant the making of an order for indemnity costs if it is "just" to do so...However, such circumstances merely offer examples of where indemnity costs are ordered. Likewise, in some situations a conditional offer may be less likely to attract the Court's discretion to order indemnity costs than others. Much will depend upon the reasonableness of the offer and of [ sic ] the reasonableness of the conduct of the other party in refusing it having regard to all the circumstances of the case.