mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Zaphir [1978] Qd R 151
Outcome: considered
In R v Zaphir [1978] Qd. R 151, Zaphir had been charged with an offence under s 359 of the Criminal Code (Qld) which relevantly provided: Any person who threatens ... cause any detriment ... to another with intent to compel him to do any act which he is lawfully entitled to abstain from doing, is guilty of a misdemeanour ... 51 On the appeal to the Court of Criminal Appeal, it was argued that the "detriment" in the section had necessarily to involve a criminal or unlawful connotation. 52 Wanstall CJ with whom Matthews J agreed said at 164: It is sufficient for present purposes to treat s. 359 of the Code as at least bringing within its scope the uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise. Whether or not it extends to threats to cause a detriment to another by bringing about a consequence which is not in violation of the other's legal right should be left for decision in an appropriate case.
Case: Railway Express Agency Inc v New York 336 US 106 (1949)
Outcome: cited
Concerning the requirement that the law be of general application, and equal in operation, Lord Bingham quotes the observation of Justice Jackson in the Supreme Court of the United States in Railway Express Agency Inc v New York 336 US 106, 112-113 (1949): The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. 56 These comments, in my opinion, bear on how the "association test" in s 501(6)(b) of the Migration Act is properly to be construed. Did Parliament intend that the definition of "not passing the character test" should apply to persons whose "association" with persons who are criminals does not bear adversely on their character, as well as to those whose "association" with such persons does bear adversely on their character? 57 Lord Bingham said at 27: My sixth sub-rule expresses what many would, with reason, regard as the core of the rule of law principle. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. This sub-rule reflects the well-established and familiar grounds of judicial review. [See Jeffrey Jowell, "The Rule of Law Today" in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution , 5 th ed, (Oxford, 2004), pp 20-21]
Case: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
Whether such an inference can be drawn in the circumstances where a Minister of the Crown has not given evidence was the subject of separate observations by Kirby J and Callinan J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507. 315 Before that decision, there was commentary in the textbooks and in the authorities supporting the view that the rule did, in fact, apply to Ministers. 319 In Minister for Immigration and Multicultural Affairs v Jia , Kirby J and Callinan J, in separate opinions, observed that the rule in Jones v Dunkel may not apply in the same way to Ministers as it does to others. 320 Kirby J said at [143]: Similarly, I would not attach a great deal of significance to (or draw adverse inferences in these cases from) the failure of the Minister to give oral evidence or to submit himself to cross-examination. Although Ministers, whilst holding office, are not immune in this country from giving evidence before courts, a court would not ordinarily hasten to draw an inference that the Minister had deliberately refrained from giving oral evidence because of a concern that the impugned decision would be revealed as affected by bias or that the Minister would be forced to make concessions damaging to the Minister's case. Ministers have to perform highly complex and onerous functions. They carry heavy burdens that severely limit the time available for them to give evidence in individual cases. In Mr Jia's case, the Minister might have considered it sufficient to rely on the record as, in the opinion of the majority of this Court, it is held to be. Applying the test of whether the parties, or the public, might entertain a reasonable apprehension that the Minister might have been biased, I do not believe that the principle expressed in Jones v Dunkel , that an adverse inference may sometimes be drawn from a failure to give evidence, should loom large in evaluating appearances in the applications brought to this Court by Mr Jia and Mr White. 321 Similarly, Callinan J stated at [284]: Adverse inferences may not be so readily drawn against a Minister in this type of litigation as might be drawn against a party who avoids the witness box in other proceedings. 323 More recently, in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [72] , Sackville J referred to the High Court's observations in Jia but found it unnecessary to decide whether it applied to the circumstances of the case before him which did not involve purported bias by the Minister as was the case in Jia , but rather, failure to have regard to certain information. Sackville J had concluded, at [71], that assuming the rule applied, it would not assist the applicant. 325 However, in most, if not all, cases, because of the factors expressed by Pincus J, and also Kirby J and Callinan J in the passages set out above, the absence of a Minister giving evidence in the for the witness box will be easily understood.
Case: Craig v State of South Australia (1995) CLR 163
Outcome: considered
As to what constitutes jurisdictional error, the High Court in Craig v State of South Australia (1995) CLR 163 said at 179: If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Case: MIMA v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: considered
This passage was referred to by McHugh, Gummow and Hayne JJ in MIMA v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. Their Honours continued at [82]: "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. 128 The central question in this case is whether the Minister misconstrued the terms of s 501(6)(b): A person does not pass the character test if: ... (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct;
Case: Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 200 ALR 359
Outcome: considered
The judgment of the Full Court of the Federal Court (French, Sackville and Hely JJ) in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 200 ALR 359 ( Lobo) is directly relevant to the present question. 130 In Lobo , the delegate of the Minister was concerned with the grant of a subclass 845 visa. Clause 845.216 of the Second Schedule of the Migration Regulations prescribed a criterion in which the Minister must be satisfied before he could grant such a visa. His satisfaction that the criterion had been satisfied was a necessary condition of his power to grant the visa. If he was satisfied that the criterion had been satisfied, and that the other conditions set out in s 65(1)(a) of the Migration Act were met, then he had a statutory duty to grant the visa. 131 The Full Court said at [43]: Where the minister misconstrues one of the criteria prescribed in the Act or regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and regulations, upon a proper construction of the criterion, require him to ask. In such a case, absent s 474, the minister's decision would be a nullity. The minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect. 133 On the appeal to the Full Court in Lobo , it was not disputed that the departmental policy to which the Tribunal adverted was narrower than the criterion for a subclause 845 visa set out in cl 845.216 of the Second Schedule to the regulations. In the light of that concession, the Full Court concluded that failure to satisfy the criteria set out in the departmental policy did not equate to failure to satisfy the criterion in cl 845.216. In consequence, the Tribunal fell into jurisdictional error. 134 The Full Court said at [65]: It is apparent from the reasons of the tribunal ... that the tribunal treated assessment according to the departmental policy as assessment for the purposes of cl 845.216. In so doing it erred and its error was jurisdictional. It did not address the question which s 65(1) of the Act required it to address. 135 An application for special leave was refused by the High Court (Gummow and Hayne JJ) [2004] HCATrans 21) on 13 February 2004, their Honours stating that the decision in Lobo by the Full Court of the Federal Court was "not attended by doubt".
Case: Collector of Customs v Pozzolanic (1993) 43 FCR 280
Outcome: considered
The applicant concedes, "The Respondent's reasons cannot be construed as if they were as statute, or with an eye finely attuned for error." This statement adopts the thrust of the observations of the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280, including the mis-combination of visual and aural senses. Of these observations, the joint judgment in the High Court of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 said: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin : [(1990) [1990] HCA 21 ; 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.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The applicant concedes, "The Respondent's reasons cannot be construed as if they were as statute, or with an eye finely attuned for error." This statement adopts the thrust of the observations of the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280, including the mis-combination of visual and aural senses. Of these observations, the joint judgment in the High Court of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 said: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin : [(1990) [1990] HCA 21 ; 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.
Case: Godley v MIMIA (2004) ALD 411
Outcome: applied
The applicant submitted that some support for the conclusion that an "innocent association" is not sufficient for the purposes of s 501(6)(b) and that there must be some nexus between the visa holder and the criminal conduct by way of knowledge of, or belief in, or even suspicion of criminal conduct, was to be found in the observations, albeit dicta , of Lee J in Godley v MIMIA (2004) ALD 411. 147 Lee J said at [47]: [47] Section 501(6)(b) combines a finding of fact by the minister with the formation of a reasonable suspicion. First, the minister must form a reasonable suspicion that a person, group or organisation has been or is involved in criminal conduct. It may be taken that to be a reasonable suspicion the suspicion must be based on reasonable grounds. Second, the minister must make a finding of fact that the visa applicant has, or has had, an association with that person, group or organisation. Again it would be necessary for there to be material capable of supporting that finding. It is unnecessary to consider the meaning of the word "association" but for a visa applicant not to pass the character test it may be taken to require the minister to make relevant findings of fact as to the knowledge, or awareness, by the visa applicant of the facts that point to the involvement of the person, group or organisation in criminal conduct.
Case: MIMIA v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552
Outcome: considered
The decision of Lee J was upheld on appeal in MIMIA v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552. The Full Court, however, did not refer to or deal with that passage in Lee J's judgment. 149 It was submitted by the Solicitor-General that the Full Court quoted the passage of Lee J's judgment preceding [47] and subsequent to that paragraph, but did not quote that passage, the suggestion being that the Full Court declined to endorse those remarks. 150 However, the position is that, having spoken of s 501(6) generally, Lee J, in [46] dealt with s 501(6)(a) ; in [47], dealt with s 501(6)(b) , and in [48], dealt with s 501(6)(d).
Case: Chan v MIMA [2001] AATA 487
Outcome: applied
It is necessary to consider Emmet Js judgment in Chan in some detail, as well as the reasons for decision of Deputy President Purvis QC in the Administrative Appeals Tribunal from whose decision the appeal was made to the Federal Court by the Minister: Chan v MIMA [2001] AATA 487. Mrs Wai Kuen Chan did not appear on the appeal. 164 The Minister for Immigration and Multicultural Affairs, on 26 February 2001, cancelled the applicant's class UC (temporary business entry) sub class 457 visa on the basis that the respondent Minister was not satisfied that the applicant passed the character test, pursuant to s 501(6) of the Migration Act . Deputy President Purvis said, at [3]: The issues that arise for determination in this application are: (a) Whether there is or has been a relevant association between the Applicant and her ex husband Mr Wong Kam Fei. (b) if the answer to (a) is in the affirmative whether, the Tribunal reasonably suspects that Mr Wong has been or is involved in criminal conduct. (c) if the answers to (a) and (b) above are both in the affirmative and the applicant thereby does not satisfy the character test, whether the Tribunal should or should not exercise its discretion to cancel the Applicant's visa. 165 Deputy President Purvis, at [10], referred to paragraph 1.5 of Direction Number 17, the forerunner to Direction Number 21, which replaced it. The paragraphs in each Direction are identical: The meaning of "association" for the purposes of the Character Test encompasses a very wide range of relationships including having an "alliance" or a "link" or "connection" with a person, a group or an organised body that is involved in criminal activities. "Association" does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following: (a) the degree and frequency of association the non-citizen had or has with the individual group or organisation; (b) the duration of the association; and (c) the nature of the association. 209 A professional association, whether as a doctor, lawyer, social worker, or teacher, would be within the respondent's construction of the association test. A mere familial or social association would be enough. So much is implicit in Emmet J's rejection of the view of the Tribunal that the association by way of family ties, summarised by Emmett J in [7] of his reasons, was sufficient to ground the relevant association.
Case: Burge v Swarbrick [2007] HCA 17 ; (2007) 234 ALR 204
Outcome: considered
In a case factually quite different from the present, and involving quite a different statutory regime, namely the Copyright Act 1968 (Cth) (the Copyright Act ) the High Court was concerned with the application of provisions of the Copyright Act , particularly the phrase "a work of artistic craftsmanship" which appears in the definition of "artistic work" in s 10 and in s 77(1) of the Copyright Act : Burge v Swarbrick [2007] HCA 17 ; (2007) 234 ALR 204. The case was concerned with the Copyright Act in its form before amendment by the Designs (Consequential Amendments) Act 2003 (Cth).
Case: Concrete Pty Ltd v Parramatta Design and Developments Ltd [2006] HCA 55 ; (2006) 231 ALR 663
Outcome: considered
In Concrete Pty Ltd v Parramatta Design and Developments Ltd [2006] HCA 55 ; (2006) 231 ALR 663 at 690, Kirby and Crennan JJ said at [111]: ... it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [(2000) [2000] HCA 48 ; 174 ALR 655] (at [13]): [13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly , Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of " the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case ". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (Emphasis added).