mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: cited
On 18 January 2007 the applicant filed a purported Notice of Appeal outlining three grounds of appeal: '2. The Single Judge of the Federal Magistrates Court in his Honors judgment delivered on the 21 December 2006 failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the judiciary Act. 1903. 3. The grounds and relief is very much similar with a recent High Court judgement Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002) 4. Recent High Court judgement ; Plintiff S 157/2002 Commonwealth of Australia [2-3] HCA 1 5. Recent Federal Court of Australia judgement: AGDB v Minister for Immigration and Multicultural Affairs. I will provide more ground after received the judgement.' (Transcribed from the original without alteration) 26 On 30 January the solicitor for the first respondent filed a Notice of Objection of Competency of the Appeal on the ground that the judgment of the Federal Magistrate dated 21 December 2006 is interlocutory and the applicant has not been granted leave to appeal against this judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 . 27 At the hearing of the appeal before me the applicant who was assisted by an interpreter elected not to make oral submissions. The first respondent relied upon its filed written submissions. 32 The applicant's second proposed ground points to the decision of Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. I have considered this case which concerns amongst other things the issue of jurisdictional error arising from a denial of procedural fairness and natural justice where there was an alleged failure to provide an applicant seeking a review of a decision to refuse the grant of a protection visa with an opportunity to respond to adverse material. Its disposition so far as factually based turned on the particular facts of the case. The Federal Magistrate, correctly, in my opinion, upon a consideration of all the material, concluded that there was no denial of procedural fairness. Muin provides no assistance to alter that finding and accordingly no arguable ground of appeal arises.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The applicant's third proposed ground points to another case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. Once again I have considered this case. It concerns matters of the statutory construction and constitutionality of certain provisions of the Act . It provides no assistance to the applicant that is apparent on the papers before me. No arguable ground of appeal arises.
Case: SGDB v Minister for Immigration and Multicultural and Indigenous [2004] FCAFC 59
Outcome: referred to
The fourth proposed ground refers to AGDB v Minister for Immigration and Multicultural Affairs . I take this to be a mistaken reference to the decision of the Full Court of this Court in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 59 , which was an appeal from a decision of the Federal Magistrates Court. In that case the applicant succeeded on the one ground that the Tribunal had fallen into jurisdictional error by failing to consider, in respect to the issue of whether the applicant had a well-founded fear of persecution, the risks which he, an Afghan citizen, together with his wife and family, might face should he return to Afghanistan, when travelling from Kabul through other ethnic tribal areas in order to reach their home. [23]-[27] It provides no assistance to the applicant in this case. No arguable ground of appeal arises. 35 Scarlett FM was correct to dismiss the application before him. 36 Accordingly, the applicant has failed to satisfy me that the decision below is attended by sufficient doubt to warrant a grant of leave. For these reasons, the application for leave to appeal ought to be dismissed with costs which I have fixed at $1,200. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 4 May 2007 The Applicant: The applicant appeared in person Counsel for the Respondent: Ms B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 May 2007 Date of Judgment: 4 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/659.html
Case: SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543
Outcome: referred to
Where an applicant does not raise any arguable ground of appeal or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal proceeding, then leave to appeal ought not be granted: SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [11] . 29 The "Notice of Appeal" raises a number of "grounds", none of which articulates a comprehensible challenge going to jurisdictional error. No particular findings are challenged. Three authorities are, in effect, said to expose the grounds. No further grounds have been added despite this being foreshadowed. Furthermore, no written submissions have been filed by the applicant. 30 The Court ought not be required, and, in my opinion, has no relevant duty to trawl through authorities cited by a party as in themselves constituting, in effect, both the grounds and particulars of its proposed appeal. Nonetheless I have carefully considered the authorities set out in the purported Notice of Appeal because the applicant is unrepresented and does not speak English.
Case: Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 
Outcome: related
On 22 April 2005 I delivered judgment in this proceeding ( Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24). Orders reflecting the result were made on 27 April 2005 ( Kamha v Australian Prudential Regulation Authority [2005] FCA 688). On 30 November 2005 the Full Court allowed an appeal, ordered that the orders made on 27 April 2005 should be set aside and remitted the matter to me for reconsideration ( Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516). That reconsideration has been delayed by reason of an appeal to the High Court in related proceedings ( X v Australian Prudential Regulation Authority (2007) 226 CLR 630). This is that reconsideration. The case concerns a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to a decision by the Australian Prudential Regulation Authority (APRA) to disqualify the applicant pursuant to s 25A of the Insurance Act 1973 (Cth). I will assume a familiarity with the history and circumstances of the case, the statutory background and the prior judgments in framing these reasons. 4 The Administrative Appeals Tribunal (the AAT) has now held that it is appropriate to make orders ensuring that an applicant's identity is not disclosed in the course of proceedings before it and that APRA can be restrained from publishing a notice relating to, or in any other way revealing, its decision ( Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642 ; (2005) 87 ALD 747, (2005) 60 ATR 1013). That supplements the topic referred to in Kamha [2005] FCA 480 ; 146 FCR 24 at [44] . Whether it is appropriate to now make such orders in this case, with its history, would be a matter for the AAT. 5 The applicant has now been charged with two offences, firstly, that he did not act honestly in exercise of powers and discharge of duties as an officer of FAI General Insurance Co Limited and, secondly, that being an officer was privy to the fraudulent altering of a database of that company. Those charges obviously involve an overlap with the subject matter of the present proceedings. The charges have been preferred in open Court and there has been newspaper publicity about them. This adds to the point discussed in Kamha [2005] FCA 480 ; 146 FCR 24 at [43] . 6 The Full Court appeal in this case was argued in public and the judgment of the Full Court is public. It has been available on the Court's website since shortly after it was delivered. It has been reported. The remitted proceeding has been argued in public. This judgment will be public. The fact that APRA has decided to disqualify the applicant is well and truly in the public domain by reason of his choice in bringing this proceeding.
Case: Kamha v Australian Prudential Regulation Authority [2005] FCA 688 
Outcome: related
On 22 April 2005 I delivered judgment in this proceeding ( Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24). Orders reflecting the result were made on 27 April 2005 ( Kamha v Australian Prudential Regulation Authority [2005] FCA 688). On 30 November 2005 the Full Court allowed an appeal, ordered that the orders made on 27 April 2005 should be set aside and remitted the matter to me for reconsideration ( Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 ; (2005) 147 FCR 516). That reconsideration has been delayed by reason of an appeal to the High Court in related proceedings ( X v Australian Prudential Regulation Authority (2007) 226 CLR 630). This is that reconsideration. The case concerns a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to a decision by the Australian Prudential Regulation Authority (APRA) to disqualify the applicant pursuant to s 25A of the Insurance Act 1973 (Cth). I will assume a familiarity with the history and circumstances of the case, the statutory background and the prior judgments in framing these reasons.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
The judicial discretion under s 16 as to whether or not to grant relief is at large, even where a case for relief is made out ( Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446; Seymour v Attorney-General (Cth) (1984) 4 FCR 498; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 338 339, agreed with by Brennan J at 365 and Deane J at 369). There are no mandatory criteria. A factor is only irrelevant to exercise of discretion if it is contrary to the purposes of the section read in its context in the ADJR Act.
Case: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Outcome: cited
Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth &amp; Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16.
Case: Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187
Outcome: followed
Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth &amp; Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16. 13 All in all, the balance lies firmly in favour of declining relief, whatever the merits of the remaining grounds, and this proceeding should be brought to a halt, leaving the applicant to his statutory rights of review. The unresolved grounds can be regarded as summarily dismissed for reasons outlined in Du Pont (Aust) Ltd 30 ALD 829, [1993] FCA 187 ; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554; and McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118. There is no need to make formal orders to that effect on the motion or otherwise as no other basis for relief remains. The appropriate order is that the proceeding be dismissed. These reasons explain the bases for that order.
Case: Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446
Outcome: cited
The judicial discretion under s 16 as to whether or not to grant relief is at large, even where a case for relief is made out ( Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446; Seymour v Attorney-General (Cth) (1984) 4 FCR 498; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 338 339, agreed with by Brennan J at 365 and Deane J at 369). There are no mandatory criteria. A factor is only irrelevant to exercise of discretion if it is contrary to the purposes of the section read in its context in the ADJR Act.
Case: McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118
Outcome: followed
All in all, the balance lies firmly in favour of declining relief, whatever the merits of the remaining grounds, and this proceeding should be brought to a halt, leaving the applicant to his statutory rights of review. The unresolved grounds can be regarded as summarily dismissed for reasons outlined in Du Pont (Aust) Ltd 30 ALD 829, [1993] FCA 187 ; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554; and McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118. There is no need to make formal orders to that effect on the motion or otherwise as no other basis for relief remains. The appropriate order is that the proceeding be dismissed. These reasons explain the bases for that order.
Case: NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319
Outcome: followed
Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth &amp; Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16.
Case: New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95
Outcome: cited
Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth &amp; Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16.
Case: Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
Full internal and external merits review of a disqualification is available pursuant to s 63 of the Insurance Act . The existence of a suitable alternative remedy is a well established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. Section 10 of the ADJR Act, particularly s 10(2)(b)(ii) reflects that principle. ( Tooth &amp; Co Ltd v Parramatta City Council [1955] HCA 21 ; (1955) 97 CLR 492 at 497 498 per Dixon CJ; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [5] per Gleeson CJ, [40] [79] per Gaudron and Gummow JJ, [145] [150] per Kirby J and [172] per Hayne J; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.) For obvious reasons, full merits review is generally a more suitable remedy than an administrative law challenge except, for example, where there is a clearly identified question of jurisdiction or power or other legal objection that can be decided without significant fact finding and is appropriate for decision by a court ( Du Pont (Aust) Ltd v Comptroller-General of Customs (1993) 30 ALD 829, [1993] FCA 187 ; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149, [2003] FCA 1319 at [49] citing New South Wales Bar Association v Stevens (2003) 52 ATR 602, [2003] NSWCA 95 at [13] per Spigelman CJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 particularly per Kirby P at 508 509; Stack v Commissioner of Patents (1999) 161 ALR 531 at [12] [13]). The points argued and decided in this and the related case already (including the point involved in the High Court proceeding) illustrate such questions. As consideration of [79] [83] of the Full Court judgment ( Kamha [2005] FCAFC 248 ; 147 FCR 516) makes clear, it is only the barest of technicalities which prevented s 10(2)(b)(ii) from being directly applicable. That does not limit the relevance of similar considerations in exercise of the discretion under s 16.
Case: Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642 ; (2005) 87 ALD 747, (2005) 60 ATR 1013
Outcome: referred to
The Administrative Appeals Tribunal (the AAT) has now held that it is appropriate to make orders ensuring that an applicant's identity is not disclosed in the course of proceedings before it and that APRA can be restrained from publishing a notice relating to, or in any other way revealing, its decision ( Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642 ; (2005) 87 ALD 747, (2005) 60 ATR 1013). That supplements the topic referred to in Kamha [2005] FCA 480 ; 146 FCR 24 at [44] . Whether it is appropriate to now make such orders in this case, with its history, would be a matter for the AAT.