mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: distinguished
In oral submissions, senior counsel for Telstra directed this first argument mainly to Telstra's ground 10(c) which was that ACCC fell into jurisdictional error. Telstra submits that at common law the inevitable result of its success in relation to cl 5A(i) is that the entire Final Determination is a nullity. Telstra cites in support Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 ; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 ; and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
Case: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Outcome: distinguished
In oral submissions, senior counsel for Telstra directed this first argument mainly to Telstra's ground 10(c) which was that ACCC fell into jurisdictional error. Telstra submits that at common law the inevitable result of its success in relation to cl 5A(i) is that the entire Final Determination is a nullity. Telstra cites in support Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 ; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 ; and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
Case: Re Australian Industrial Relations Commission; Ex parte Smith [2004] FCAFC 271
Outcome: referred to
Contrary to Telstra's submission, the authorities show that where there has been an invalid exercise of an administrative power, including on the ground of jurisdictional error, the Court will consider whether it is appropriate to find a severable valid exercise of power: cf Biyiksiz v Minister for Immigration and Multicultural Affairs [1998] FCA 352 at 12; Re Australian Industrial Relations Commission; Ex parte Smith [2004] FCAFC 271 at [85] - [88] ; Minister for Home Affairs v Tervonen [2008] FCAFC 24 ; (2008) 166 FCR 91 at [97] - [107] .
Case: Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323
Outcome: referred to
Section 46 of the AI Act (set out at [5] above) requires severance, because the structure and effect of the Final Determination clearly expose "the extent" to which the Final Determination is and the extent to which it is not in excess of power: cf Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 347-348 per Dawson J; Evans v Minister for Immigration [2003] FCAFC 276 ; (2003) 135 FCR 306 at [63] [65].
Case: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) (2007) 99 ALD 268
Outcome: distinguished
Telstra relies on the decision of Bennett J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) (2007) 99 ALD 268 ( Telstra v ACCC (No 3) ). That case concerned a Pt A competition notice issued by ACCC under s 151AKA of the Act. Section 151AKA(10) provided, relevantly, that ACCC must not issue such a notice unless it had first given the addressee carrier or carriage service provider a written notice inviting it to make a submission to ACCC on the proposal to issue the Pt A competition notice. 28 In Telstra v ACCC (No 3) , ACCC sought leave to argue that there should be a severance of the respective parts of the Pt A competition notice pursuant to s 46 of the AI Act so as to preserve the validity of those parts which had been notified in the notice of invitation. Her Honour held (at [83] [91]) that there could not be a severance. She held that s 46 had no application to a decision made under an Act as distinct from an instrument (at [55]) and also distinguished between questions of severance involving an "excess of power" and a lack of power to make an entire instrument (at [57]). 29 It suffices to say that s 151AKA(10) was a prohibition on the issuing of a Pt A competition notice unless ACCC had first taken the steps mandated by s 151AKA(10)(a). 30 The statutory provisions in the present case are different. Section 152CR(1) required ACCC to take specified matters into account in making a decision, namely, a final determination, and s 152AQA required ACCC to have regard to any determination of principles relating to the price of access to a declared service if it was required to arbitrate (make a decision upon) an access dispute under Div 8 in relation to that service.
Case: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380
Outcome: applied
concept of authorisation was discussed in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 at [20] (p 385) (per Branson J) and at [136] [147] (pp 408 411) (per Kenny J). After reviewing a number of authorities which, by 2006, were largely of historical significance, Kenny J approached the question of authorisation by applying the terms of s 101(1A) construed in light of the historical position. Her Honour held that it is usually not a straightforward matter for the Court to determine what degree of control can constitute a sufficient basis for a finding of authorisation ( Cooper [2006] FCAFC 187 ; 156 FCR 380 at [142] (p 410)). Her Honour said that it will always be a question of fact and degree in each case. Even mere inactivity or indifference might be sufficient if those things are coupled with other factors. There is not a great deal of evidence directed to the position of the second respondent. However, he has not appeared to defend himself against the allegations made against him. His involvement with the first and fourth respondents cannot be denied (as to which see [43] [45] above). It is reasonable, I think, in the circumstances, for me to conclude that he played a significant role in the conduct of the fourth respondent which resulted in the unlawful transmission of Episode 5 of Twin of Brothers . He seems to be the most senior executive active in the business of the fourth respondent. In the circumstances, I am prepared to infer that the second respondent authorised the infringement by the fourth respondent which I have found. I do so bearing in mind the terms of s 101(1A) and the observations of the Full Court in Cooper [2006] FCAFC 187 ; 156 FCR 380. It also seems to me that the second respondent participated in a common design with others whereby TVBO's copyright in the Twin of Brothers films was infringed. For the above reasons, I am prepared to make the orders sought as against the second and fourth respondents. There will be orders accordingly. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 7 October 2009 Counsel for the Applicants: Mr JV Nicholas SC with Mr CN Bova Solicitor for the Applicants: Marque Counsel for the First and Third Respondents: Mr M Green The Second and Fourth Respondents did not appear Solicitor for the First, Second and Third Respondents: S Moran &amp; Co Date of Hearing: 10 February 2009 Date of Judgment: 7 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1132.html
Case: B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30
Outcome: followed
In B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 (' B41 of 2003 '), Dowsett J dealt with a similar situation to that of the present appellant. There the appellant decided not to attend hearing after his migration agent advised him as to his likely prospects of success. His Honour stated at [23]: The Tribunal had tried to advise him of these matters in the correspondence. Even accepting that he did not receive those letters, I cannot accept that he was unaware of the purpose of the hearing. He asked the immigration adviser whether he could attend and clearly understood that it was the occasion for making submissions. She did not tell him that he could not attend, but that there was no point in his so doing. That was a matter for judgment. He chose to act on this advice. That he did not attend the hearing was a consequence of such choice. There was no denial of procedural fairness. See R v Home Secretary; Ex parte Al-Mehdawi [1990] 1 AC 876 at 895 and SBA Foods Pty Ltd v Victorian WorkCover Authority &amp; Anor [2001] VSC 276 per Gillard J at [274-283]. See also Stefanovski v County Court of Victoria &amp; Anor [2000] VSC 417 per Gillard J at [175-190]. A passage from the decision in Al-Mehdawi was cited with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy &amp; Ors [2002] HCA 51 ; (2002) 210 CLR 438 at [22] . However the passage in question was not directly supportive of the outcome in Al-Mehdawi . I also note that his Honour there observed that: 'Procedural unfairness can occur without any personal fault on the part of the decision-maker.' See also SZEYH v Minister for Immigration [2006] FCA 93 at [30] - [31] per Jacobsen J. 19 Clearly, the appellant made a choice, of exactly the same kind described by Dowsett J in B41 of 2003 . It is not a case, such as that which confronted the Court in the M172 case where the appellant's migration adviser responded on his behalf, contrary to instructions and declined the invitation.
Case: M172 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FMCA 23
Outcome: applied
In M172 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 23 (' M172 case '), Bryant CFM said the following, at [28]: All the Australian authorities require some defect in the decision making process. Re MIMIA; Ex Parte Lam (2003) HCA 6 where at para 105 McHugh and Gummow JJ said: But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it (98). What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken. 19 Clearly, the appellant made a choice, of exactly the same kind described by Dowsett J in B41 of 2003 . It is not a case, such as that which confronted the Court in the M172 case where the appellant's migration adviser responded on his behalf, contrary to instructions and declined the invitation.
Case: NADK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 184
Outcome: considered
Similarly, in NADK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 184 at [9] , [14] and [16] the Full Court was willing to accept that the appellant was not told of the hearing but even so found that that matter was of no legal relevance and did not constitute jurisdictional error.
Case: VNAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 134
Outcome: considered
It does not matter that an appellant's non-attendance is by reason of their own election or by no fault of their own. In VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 , Sundberg and Hely JJ stated, at [16]: Part 7 of the Act (in which ss 420 , 425A , 426A , 441A and 441C appear) must be read as a whole. Sections 425A , 426A , 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence.
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
if the Tribunal misconstrued any of the criteria prescribed by the Migration Act 1958 (Cth) ("the Act ") or the Migration Regulations 1994 (Cth) ("the Regulations ") or in effect failed to ask the question which the Act or Regulations required to be asked, jurisdictional error will occur. The relevant principles are conveniently set out by Kenny J in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558.
Case: Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61
Outcome: applied
appears clear that s 424A is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and excludes other common law principles: s 422B and see SZBDF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302 and Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61 at [60] [70].
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: applied
my view the Tribunal did not deny any procedural fairness to the appellant. The appellant was given the opportunity to provide the Tribunal with material in support of his claims. At the hearing the appellant provided the Tribunal with a number of newspaper clippings and other material relating to political killings and election-related violence. Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] [14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42] [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20] [30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178 , at [15] to [16].
Case: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Outcome: applied
my view the Tribunal did not deny any procedural fairness to the appellant. The appellant was given the opportunity to provide the Tribunal with material in support of his claims. At the hearing the appellant provided the Tribunal with a number of newspaper clippings and other material relating to political killings and election-related violence. Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] [14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42] [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20] [30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178 , at [15] to [16].
Case: SZBDF v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302
Outcome: applied
appears clear that s 424A is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and excludes other common law principles: s 422B and see SZBDF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302 and Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61 at [60] [70].
Case: VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212
Outcome: cited
can find no basis for considering that the Tribunal misconstrued its task or failed to address the correct inquiry. The appellant submitted that the Tribunal misunderstood the meaning of persecution and "serious harm" for the purposes of the Refugees Convention and s 91R of the Act in finding that the harm that the appellants experienced in the past did not amount to serious harm. In my view the Tribunal did not misunderstand the meaning of either of those terms within the meaning of the Refugees Convention or the Act . It was open at all times to the Tribunal to find that the threats and harassment alleged by the appellant did not amount to serious harm: see generally VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212 at [17] [28]. The Tribunal simply did not accept the appellant's claims concerning the incidents following the elections in April 2004. It was not satisfied that he was ever harmed as he alleged. The appellant also submitted the Tribunal failed to consider whether the facts as it found them to have occurred led to the conclusion that the appellants had a well-founded fear of persecution for a Refugees Convention reason. However, it is clear to me that the Tribunal did consider the findings of fact and addressed the proper question whether the appellants had a well-founded fear of persecution. The appellant also submitted that the Tribunal misunderstood what follows from its finding that the persecution did not have an "official" quality. But, as was noted by the Federal Magistrate, this submission did not appear to relate to any findings of the Tribunal in the present case. The appellant submitted that the Tribunal acted in breach of the rules of natural justice by failing to give him an opportunity to respond to adverse material comprising the country information in relation to the 2004 elections cited in the Tribunal's reasons and referred to above. The appellant says that had he been notified of this material he would have provided the Tribunal with information about election-related violence in Sri Lanka.
Case: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
Outcome: applied
my view the Tribunal did not deny any procedural fairness to the appellant. The appellant was given the opportunity to provide the Tribunal with material in support of his claims. At the hearing the appellant provided the Tribunal with a number of newspaper clippings and other material relating to political killings and election-related violence. Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] [14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42] [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20] [30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178 , at [15] to [16].
Case: VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178
Outcome: applied
my view the Tribunal did not deny any procedural fairness to the appellant. The appellant was given the opportunity to provide the Tribunal with material in support of his claims. At the hearing the appellant provided the Tribunal with a number of newspaper clippings and other material relating to political killings and election-related violence. Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] [14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42] [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20] [30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178 , at [15] to [16].
Case: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
Outcome: applied
my view the Tribunal did not deny any procedural fairness to the appellant. The appellant was given the opportunity to provide the Tribunal with material in support of his claims. At the hearing the appellant provided the Tribunal with a number of newspaper clippings and other material relating to political killings and election-related violence. Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] [14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42] [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20] [30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178 , at [15] to [16].