mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120
Outcome: cited
It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
Case: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276
Outcome: cited
It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
Case: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
Outcome: considered
The background to the enactment of s 424A(3)(b) was considered at length by Merkel and Hely JJ in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. In that case their Honours stipulated that, in order for information to fall within s 424A(3)(a) and therefore be excluded from the application of s 424A(1) , it must be information not specifically about the applicant or another person. The further reference to information that is "just about a class of persons of which the applicant or other person is a member" is not a second criterion to be met, but is designed to underline the specificity required by precluding any argument that reference to a class could be taken as reference to all individuals (including, for example, an applicant) falling in it ( NAMW 140 FCR at 599-600). The reasoning in NAMW [2004] FCAFC 264 ; 140 FCR 572 was also adopted by the Full Court in WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330. 35 Accordingly, examples of information excluded by section 424A (3)(a) are: &#8226; country information: NAMW [2004] FCAFC 264 ; 140 FCR 572, SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346 and SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 &#8226; information from a university website as to the content of a marketing degree course SZFLL v Minister for Immigration and Citizenship [2007] FCA 355 &#8226; information from Canadian source material, telephone interviews, DFAT and UK Home Office material that it would be difficult to leave the relevant country if one was wanted by the authorities: WAJW [2004] FCAFC 330. 37 I do not accept the submission of Mr Young that the relevant information upon which the Tribunal was relying in its decision of 8 February 2007 pertained only to whether people could fly directly from Australia to India if they were in possession of a valid Nepalese passport. From the material I have set out above it is clear that there exists information in the public domain concerning the lack of restriction on persons holding Nepalese passports to enter India, and although not identified as such as it was in the decision of the Tribunal as first constituted, it was upon this information that the Tribunal was clearly relying in both its letter to the appellant and its decision of 8 February 2007. This was information not specifically about the appellant or another person. It concerned a class of persons, of which the appellant was a member, namely all Nepalese citizens with passports. Although not specifically identified as such, it was information akin to country information. It is at least analogous to the information the subject of the decision in WAJW [2004] FCAFC 264 ; 140 FCR 572.
Case: Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512
Outcome: referred to
Ms Ogawa submits that both Scarlett FM and the Tribunal erred in their approach to the phrase ' is being assessed by an officer ' as contained in the Regulations, and submits that the words ' being assessed by an officer ' was treated by them as meaning that there was no assessment then in progress. She submits that the words ' being assessed ' are matters of fact and degree and that if there has been a misapprehension of the meaning of the phrase, it constitutes an error of law. She refers to the decision of Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 per Gummow J at 519. 43 Ms Ogawa's references to Scargill and Gauthiez do not relate to the issue before the Tribunal and Scarlett FM. Those cases considered whether an applicant could take advantage of his or her unlawful activities under immigration law to establish usual residence in Australia. They are not analogous to the present circumstances.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte applicants S134/2002 [2003] HCA 1 ; [2003] 211 CLR 441
Outcome: followed
With regard to the claim by Ms Ogawa that only the Minister can exercise power under s 351 of the Act, s 351(3) provides: ' The power under subsection (1) may only be exercised by the Minister personally '. By s 351(1) the Minister is empowered to substitute a decision of the Tribunal for a decision which is more favourable to an applicant. Scarlett FM observed that pursuant to s 351(7) of the Act the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether requested to do so by an applicant or by any other person, or in any other circumstances. The High Court has determined that in analogous circumstances prerogative writs cannot operate to compel the Minster to act: see Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex parte applicants S134/2002 [2003] HCA 1 ; [2003] 211 CLR 441 at 48. 46 It follows that there is no error in the decision of the Federal Magistrate relating to the application under s 351 of the Act. 47 For the above reasons, the appeal must be dismissed. In doing so however, the Court makes the following observations.
Case: R v. Governor of Brixton Prison. Ex parte Soblen [1963] 2 Q.B. 243
Outcome: cited
The conclusion reached by His Honour relating to the expiration of Ms Ogawa's Bridging visa is not dependent upon any letter of the Registrar of the High Court as constituting a ' decision ' as Ms Ogawa has submitted. Although Scarlett FM refers to the letter of the Registrar as a decision by the High Court, it is clear that His Honour's conclusion arises from a construction of Rule 41.10.4 of the High Court Rules 2004 , which deems an application for special leave to be abandoned irrespective of any notification by the Registrar. Further, in answer to Ms Ogawa's submission that the abandonment pursuant to Rule 41.10.4 ' is nothing more than a presumption' , the effect of the rule is clear. It provides that, where an unrepresented applicant does not provide a written case and draft Notice of Appeal within the 28 day period, the application is deemed to be abandoned. In R v. Governor of Brixton Prison. Ex parte Soblen [1963] 2 QB 243 at 315 Pearson L.J said: 'The word " deems " normally means only " is of opinion " or " considers ", or at most " decides ", and there is no implication of steps to be taken before the opinion is formed or the decision is taken.' 25 Ms Ogawa claims that there is abundant evidence that she never abandoned her judicial review proceedings, of which the application for special leave to the High Court comprised a part, and that the orders of Callinan J acknowledge this fact. Unfortunately for Ms Ogawa the events subsequent to the decision of Scarlett FM do not impact upon his findings, and it is those findings only with which this Court is concerned.
Case: Scargill v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 116
Outcome: referred to
Ms Ogawa claims that in order to determine whether or not her Ministerial Intervention request ' was being assessed ', it was ' necessary for the Tribunal to take into account the reasons why an officer did not take action in respect of the appellant's Ministerial Intervention Request '. She says that if the officer did not take action in respect of a Ministerial Intervention Request for illegitimate reasons, the Minister cannot rely upon ' the time when the officer did not take action '. She refers to Scargill v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 116 at para 29. 41 Ms Ogawa thereafter refers to the observations made by Scarlett FM of the MIU and of his observation that the ' Department acted wrongly ' in withdrawing Ms Ogawa's request. She therefore claims that the Tribunal erred in law. 42 Further, she claims that an officer of the Department has no power or authority to withdraw her request for Ministerial intervention and the purported withdrawal was in itself an error of law. Ms Ogawa made other submissions which appear to be based on findings that were not made by Scarlett FM. However, for the purpose of this appeal the Court is satisfied that these reasons deal with her arguable submissions. 43 Ms Ogawa's references to Scargill and Gauthiez do not relate to the issue before the Tribunal and Scarlett FM. Those cases considered whether an applicant could take advantage of his or her unlawful activities under immigration law to establish usual residence in Australia. They are not analogous to the present circumstances.
Case: SZAJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 782
Outcome: referred to
The role of the Court in an appeal such as this is to determine whether the Federal Magistrate erred: see SZAJB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 782. The Court is confined to a consideration of the issues before Scarlett FM. These issues are whether the appellant was entitled to a Bridging visa on 19 May 2006, and whether there was an application being considered by the Minister under s 351 of the Act.
Case: Chancellor, Masters and Scholars of the University of Oxford (t/as Oxford University Press) v Registrar of Trade Marks [1990] FCA 175 ; (1990) 24 FCR 1
Outcome: cited
24 contemplates that the registered trade mark will be generally accepted as the sign that describes, or is the name of, the relevant article or substance. There must be general acceptance within the relevant trade that the mark is the generic name of the article or substance. Use sometimes by some people will not be enough. Nor will the requirements of the section be satisfied if the mark is only one of two or more generic names for the article or substance. In the present case, the generic name for the particular article or substance is "balanced salt solution". Balanced salt solution is a particular type of sterile ophthalmic irrigating solution with a particular mix of constituents. Whilst "bss" may well be an acronym for "balanced salt solution", it did not become generally accepted within the relevant period as the generic signification of "balanced salt solution" or of the particular type of sterile irrigating solution comprising the constituents of standard balanced salt solution. The most that can be said, on the evidence, is that the letters "BSS" were sometimes used in the relevant period in scientific journal articles as a convenient editorial abbreviation for "balanced salt solution". Such a use does not demonstrate "general acceptance" in the relevant trade that the mark is the generic name. This is especially so in circumstances where the respondent has chosen to base its case on this point almost entirely on the publications which it tendered, most of which were authored and published overseas. The respondent called no doctor, no nurse, no pharmacist, no purchasing officer&#8212;indeed, it called no third party participant in the relevant trade. The applicant, on the other hand, called trade evidence. That evidence established: The respondent has failed to discharge its onus of proving that the letters "BSS" became generic or descriptive in the period after 22 March 1988 and as at 6 December 2006. The respondent's case based upon s 87 and s 24 of the Act also fails. For the above reasons, I do not need to consider s 89 of the Act. However, I will do so against the possibility that I am wrong in the conclusions which I have reached in respect of Ground 2.
Case: Clark Equipment Company v Registrar of Trade Marks [1964] HCA 55 ; (1964) 111 CLR 511
Outcome: followed
was common ground between the parties that the relevant principle governing inherent adaptability was that stated by Kitto J in Clark Equipment Company v Registrar of Trade Marks [1964] HCA 55 ; (1964) 111 CLR 511 at 514 where, after discussing the well-known observations of Lord Parker of Waddington in Registrar of Trade Marks v W &amp; G Du Cros Ltd [1913] AC 624 at 634 635, his Honour said: ... the question whether a mark is adapted to distinguish [must] be tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives&#8212;in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess&#8212;will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it.
Case: Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184 ; (2007) 164 FCR 506
Outcome: followed
remarks of Kitto J were made in respect of the 1955 Act. However, the Full Court of this Court has taken the same approach to the question of inherent adaptability for the purposes of s 41(3) of the Act (see Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273 ; (2002) 122 FCR 494 at [47] [49] (pp 510 511) (per French J), at [80] [100] (pp 518 522) (per Lindgren J) and at [145] [148] (pp 532 533) (per Stone J); and Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184 ; (2007) 164 FCR 506 at [36] (pp 517 518) (per Gyles J) and at [125] (p 539) (per Allsop J)).
Case: HCA Colours Australia Pty Ltd v Holland Colours NV (2003) 59 IPR 507
Outcome: cited
views were expressed by a delegate of the Registrar in HCA Colours Australia Pty Ltd v Holland Colours NV (2003) 59 IPR 507 at 516 517 and in Crooks Michell Peacock Stewart Pty Ltd v Kaiser (t/as Commercial Art &amp; Industrial Design) (1994) 29 IPR 225 at 232.
Case: Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273 ; (2002) 122 FCR 494
Outcome: followed
remarks of Kitto J were made in respect of the 1955 Act. However, the Full Court of this Court has taken the same approach to the question of inherent adaptability for the purposes of s 41(3) of the Act (see Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273 ; (2002) 122 FCR 494 at [47] [49] (pp 510 511) (per French J), at [80] [100] (pp 518 522) (per Lindgren J) and at [145] [148] (pp 532 533) (per Stone J); and Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184 ; (2007) 164 FCR 506 at [36] (pp 517 518) (per Gyles J) and at [125] (p 539) (per Allsop J)).
Case: TGI Friday's Australia Pty Ltd v TGI Friday's Inc [2000] FCA 720 ; (2000) 100 FCR 358
Outcome: applied
234 has been described as a "gateway" opening the way for a challenge to the continued registration of a trade mark. In TGI Friday's Australia Pty Ltd v TGI Friday's Inc [2000] FCA 720 ; (2000) 100 FCR 358 at [32] [36] (p 364), the Full Court discussed s 234. At [35] [36], the Court said: Section 234(2) does not of itself authorise rectification of the Register by cancellation of a trade mark or otherwise. Rather, the subsection acts as an impediment to any proceeding alleging invalidity. Any application by Friday's Australia and Big Country for rectification of the Register must be made under s 88 of the 1995 Act. Even if, as Friday's Australia and Big Country contend, s 234(2)(d) or (e) applies in this case, the consequence is only that the conclusive presumption of validity does not arise. Satisfaction of one of the conditions in s 234(2) does not, of itself, constitute a ground under s 88(2) of the 1995 Act for rectification of the Register. Therefore, in addition to agitating the question of renewal, Friday's Australia and Big Country seek to establish grounds within s 88(2) that satisfy s 234. The respondent contended that it discharged its onus of proving that the applicant's BSS trade mark did not, as at 6 December 2006, distinguish the applicant's BSS balanced salt solution from the goods or services of other persons. I shall consider this contention when I come to evaluate the grounds for cancellation of that trade mark relied upon by the respondent. Assuming for the moment that the respondent was able to pass through the s 234 gateway, it then relied upon two grounds in support of its claim that the applicant's BSS trade mark should be removed from the Register. Ground 1 (Trade Mark Not Distinctive as at Application Date)
Case: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181
Outcome: referred to
I think reading the reasons of the delegate as a whole she did conclude and then proceeded on the basis that the appellant was a Falun Gong practitioner in China, albeit not one of interest to the authorities. The Tribunal did not advise the appellant at or before the hearing that that fact was in issue. The letter from the Tribunal sent after the hearing, it seems with its obligation in s 424A in mind, raises that issue but a letter after the hearing cannot satisfy the provisions of s 425(1) of the Act . The Tribunal failed to comply with the obligation in s 425(1). It must be said that there may be circumstances where it will not be easy for the Tribunal to determine when the applicant for review should be given notice of an issue by reason of the provisions of s 425(1) of the Act . Those circumstances may arise if, on one view, the issue may be seen as but a part of a larger or more general issue which is clearly in dispute and which is not caught by the notice requirement in s 425(1). The difficulties will be exacerbated if (as happened in this case) the applicant for review makes considerable changes to his or her story after the delegate's decision and before the Tribunal hearing. I have given anxious consideration to the question whether the applicant's alleged practice of Falun Gong in China, albeit in a way that did not attract the attention of the authorities, was but part of a larger or more general issue which was clearly in dispute. I have decided that it was not because, absent any other relevant circumstances, the question is to be determined by reference to the reasons of the delegate and she drew a distinction between the two matters. This approach is consistent with that taken by the High Court in SZBEL . Finally, I note that it was not argued by the Minister that granting relief would be futile. It seems to me that in any event such an argument could not succeed. One might have some doubts as to whether the appellant has additional evidence but the onus to make out futility is much higher than that: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009
Outcome: referred to
The appellant submitted that the obligation in s 424A arose as soon as the Tribunal reached the state of satisfaction referred to in subs (1)(a) and was to be discharged immediately. As to the matters referred to in the letter sent after the hearing, it may be that the Tribunal had the inconsistencies in mind before the hearing on 19 January 2006, but it was not unreasonable for it to see if they were dealt with satisfactorily at the hearing. To my mind, there is nothing in s 424A that suggests the obligation created by the section is to be discharged at any particular time prior to the Tribunal's decision. My conclusion is consistent with the approach taken by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 at 1021 [56] per McHugh J, at 1039 [164] per Kirby J, at 1045 [202] per Hayne J, although the Court in that case was addressing a different point. 68 It was also submitted by the appellant that the Tribunal's letter dated 20 January 2006 did not comply with s 424A(1)(b) in that it did not "ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review". That contention was not developed in oral submissions before me and, in any event, it must be rejected. It seems to me the letter makes clear the significance of the apparent inconsistencies to the issues on the review. 69 I will deal with each piece of information said by the appellant to fall within s 424A in turn. It is important to note that other than the Liu information, which was his oral evidence given to the Tribunal, in each case the information was in a document before the Tribunal. In three of the four cases, the document was provided to the Tribunal at the hearing. The change of name information was in a document provided to the Department by the appellant. The Dellar information