mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Russian Commercial &amp; Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Outcome: cited
Secondly, it is said there must be "a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought": Russian Commercial &amp; Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448, Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437, Transphere at 605.
Case: Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: cited
There is high authority against the supposed limitation on the exercise of the discretionary power to grant declaratory relief. In Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 the High Court, in respect of then current committal proceedings (ie actual, not hypothetical, criminal proceedings) made declarations that (i) certain documents were privileged from production and that (ii) the information laid against Mr Whitlam was bad in law. Gibbs ACJ said at 20-21: "It is well established that the power of the court to make a declaration, under a provision such as s 75 of the Supreme Court Act 1970 (N.S.W.), as amended, or O. 26, r. 19 of the Rules of this Court, is a very wide one: Forster v. Jododex Aust. Pty. Ltd . [1972] HCA 61 ; (1972) 127 CLR 421, at pp 435-436 . It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings. Indeed in Dyson v. Attorney-General [1911] 1 KB 410, which is one of the foundations of the law on this subject, it was held that the court had power to make a declaration that the plaintiff was not under any obligation to comply with the requisitions contained in a notice sent to him by the Commissioners of Inland Revenue, notwithstanding that neglect to comply with the notice was an offence see especially per Farwell L.J. [1911]1 KB, at p 422. Since that time there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings." 63 Secondly, it is said there must be "a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought": Russian Commercial &amp; Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448, Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437, Transphere at 605.
Case: Wallersteiner v Moir [1974] 1 WLR 991
Outcome: cited
One of the authorities discussed by Young J was BMI . In that case Keely and Beaumont JJ (at 413), after referring to what was said by Buckley LJ and Scarman J in Wallersteiner v Moir [1974] 1 WLR 991 at 1029 and 1030 respectively, said: " ... we think that it is generally undesirable that the court should grant relief by way of declaratory orders under s 108 [of the Conciliation and Arbitration Act 1904 (Cth)] in the absence of any contest on the question." Their Honours acknowledged (at 414) that, if it were demonstrated in a particular case that it were necessary that the question be resolved judicially, it may be appropriate for the court to appoint an amicus curiae to put the contrary view, if any, on the facts and on the questions of law which arise.
Case: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501
Outcome: referred to
As to the fact that the appellant was not aware of the Tribunal hearing, Raphael FM referred to Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 , where the Full Court noted that, before an omission or an action can properly be said to have occasioned a fraud on a Tribunal, it must itself be properly characterised as a fraudulent omission vis-&agrave;-vis the visa applicant. His Honour observed that there was a simple explanation why the appellant was not informed of the date of the hearing. It was because he had not told Mr Shi his new address. His Honour did not infer fraud arising from that fact.
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189
Outcome: referred to
The question of whether or not there was such fraud on the Tribunal rests essentially on the findings of fact made by the Federal Magistrate. The appellant seems to be relying upon SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189. 3 The appellant has had two migration agents advise him. A further particular of his ground of appeal is that Raphael FM failed to conduct a complete investigation into whether or not his second migration agent fulfilled his duty as legal representative. 4 The appellant's evidence before Raphael FM was that his first migration agent, Mr Shi, had concocted his protection visa claims. He says that he told Mr Shi that he was a Falun Gong practitioner and feared harm in China for that reason. The appellant says that Mr Shi completed the statement accompanying the appellant's protection visa application which stated that he had been the head chef at his workplace, had refused a request for a false receipt from some public servants, had complained to the authorities about the corruption, was warned by the head of the company to cease his involvement and was stood down and the accounts he managed audited. The appellant accepts that Mr Shi made the application on his behalf but says that he did not sign it, he did not know what was in it, he was not advised about the progress of the application, of the application for review of the delegate's decision, of the invitation to attend a hearing or of the Tribunal's decision. 16 In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J considered fraud by an agent in the context of a Tribunal hearing. In that case, the appellant's signature had been falsely placed on the document and part of the appellant's statement had been made up. Justice Besanko said at [37] that those facts may go some way towards establishing fraud but that it is still necessary for the appellant to show that the fraud has affected the process described by the Migration Act 1958 (Cth). In this case, the matters raised by the appellant, namely: &#8226; the fact that Mr Shi signed the form in the context of an authority to act; &#8226; the fact that the appellant had not notified Mr Shi of his new address; and &#8226; the fact that Mr Shi failed to tell the appellant about the Tribunal hearing; do not constitute fraud on the Tribunal within the meaning of SZFDE and there is not sufficient evidence to support such a conclusion.
Case: SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980
Outcome: referred to
In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J considered fraud by an agent in the context of a Tribunal hearing. In that case, the appellant's signature had been falsely placed on the document and part of the appellant's statement had been made up. Justice Besanko said at [37] that those facts may go some way towards establishing fraud but that it is still necessary for the appellant to show that the fraud has affected the process described by the Migration Act 1958 (Cth). In this case, the matters raised by the appellant, namely: &#8226; the fact that Mr Shi signed the form in the context of an authority to act; &#8226; the fact that the appellant had not notified Mr Shi of his new address; and &#8226; the fact that Mr Shi failed to tell the appellant about the Tribunal hearing; do not constitute fraud on the Tribunal within the meaning of SZFDE and there is not sufficient evidence to support such a conclusion.
Case: NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Outcome: cited
Again, I can understand that persons with ties to a particular community, running a school, and of a minority religion, although a substantial minority, would be disappointed by the result on this issue. However, I can find no jurisdictional error in the way in which the Tribunal approached the matter. NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 is a decision which is relatively favourable to appellants in situations like this but, even approaching the matter on the basis of Branson J's judgment in that matter does not, it seems to me, establish jurisdictional error in the present case. 8 This case illustrates the difficulties both of applicants for visas and of tribunals in dealing with those applications in deciding important issues without the usual forensic advantages. The appeal is dismissed. The appellants are to pay the costs of the first respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 12 March 2008 The Appellants appeared in person Counsel for the First Respondent: Mr J Mitchell Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 5 March 2008 Date of Judgment: 5 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/311.html
Case: Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437
Outcome: cited
There was a second and independent ground for rejecting the claim for protection visas by the Tribunal what is generally referred to as the relocation principle. The Tribunal was satisfied that it was reasonable to expect the appellants to live elsewhere other than in the particular place and avoid the harm they fear. In coming to that view the Tribunal referred to the well-known authority of Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437. The Tribunal gave detailed reasons for coming to the conclusion that it reached and it seems to me that it involved two aspects. The first was that there would be protection in other parts of India and, secondly, that it was reasonable and practicable for these particular appellants to so relocate.
Case: SZKAW v Minister for Immigration &amp; Anor [2007] FMCA 1763
Outcome: related
This is an application for an extension of time to file and serve a notice of appeal from a decision of the Federal Magistrates Court delivered on 17 October 2007 ( SZKAW v Minister for Immigration &amp; Anor [2007] FMCA 1763). That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal unfavourable to the applicant. There are no grounds stated in the application for an extension of time but there is a draft notice of appeal. The grounds of appeal are as follows: "1. The Tribunal made jurisdictional errors(s) while deciding on Applicant Protection Visa Application review case which are stated as under. 2. The applicant fear serious harm for religious reason his fear of persecution are well founded and that the Tribunal should have given the applicant every opportunity in accordance to the migration" 2 The orders sought are as follows: "1. The Tribunal made Jurisdicti [sic] error(s) while deciding on Applicant Protection visa. 2. The Tribunal did not fully understand Applicant's unfortunate circumstances in which he had to flee his country Pakistan for his well founded and convention based fear of persecution." 3 The respondent opposes the application on the basis that there is no prospect of success on the appeal and further points out that no special reason has been advanced as to why an extension should be granted to justify departure from the ordinary rule prescribing a period within which an appeal must be filed and served. The delay is not great in the present case but I have a clear view that the first basis of opposition is established. 4 The grounds of this application are deficient. There is no identification of error by the learned Federal Magistrate which would amount to appellable error. Furthermore, when I turn to the reasons for judgment of the Federal Magistrates Court, I see that the ground for the judicial review of the decision of the Tribunal did not, in itself, state any proper ground. It is quoted as being as follows: "I want this Court to ask RRT to heard [sic] my case again because I think they didn't judge my circumstances" 5 The learned Federal Magistrate extended significant leniency to the applicant by going through and, as it were, setting out possible arguments and rejecting them. I pointed out to the applicant at the commencement of the proceeding that no ground had been identified in the notice of appeal and that, that point having been taken, he should address the problem. I realise, of course, that with an unrepresented party of this character of his background, it is almost impossible for him to add to the written material. The fact remains that an applicant for leave must abide by the normal rules and show at least an arguable ground of appeal, together with the explanation for delay. The applicant simply sought another hearing before the Refugee Review Tribunal so that it could hear the matter properly.
Case: Barnhart v Peabody Coal Co 123 S Ct 748 (2003)
Outcome: cited
However it is equally clear that the 20 business day time period stipulated by s 74B is intended to "spur [the Minister] to action, not to limit the scope of his authority" ( Brock v Pierce County [1986] USSC 96 ; 106 S Ct 1834 (1986) at 1841, cf Barnhart v Peabody Coal Co 123 S Ct 748 (2003) at 755). The EPBC Act recognises that, notwithstanding the time limits specified for the making of decisions, decision-making within such time limits may not always be achievable. The effect of s 156(3) and s 518(1) is to validate decisions made after the expiry of the time stipulated by the Act, including decisions made under s 74B.
Case: Bond v WorkCover Corporation of South Australia (2005) 93 SASR 315
Outcome: cited
Such language as "may only" in legislation is indicative of a need to comply with a set time limit, although not conclusive (see, for example, Bond v WorkCover Corporation of South Australia (2005) 93 SASR 315). However it is of some use to contrast the language in s 74B EPBC Act with that in s 459G Corporations Act , and similarly, for example, with: &#8226; the legislation considered in Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 which provided that an application to renew a mining licence was required to be made "during the currency of such license... and not later than one month before the expiry of such license". In that case the High Court interpreted the legislation to mean that a valid application had to comply strictly with prescribed time limits; and &#8226; the relevant section of the Liquor Ordinance 1929 (ACT) considered in Ayres v Chacos (1972) 19 FLR 468, which provided that "An applicant for the grant, removal or transfer of a licence...shall, not less than twenty-one days before making the application, give notice in writing to the Registrar and to an Inspector...". In the circumstances of that case Joske J held that the Licensing Court had no jurisdiction to deal with an application made on a period of notice less than the period of 21 clear days.
Case: Bowman v Blyth [1857] EngR 678 ; (1857) 7 E &amp; B 26, 119 ER 1165
Outcome: cited
I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: &#8226; the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or &#8226; the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E &amp; B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).
Case: Brock v Pierce County [1986] USSC 96 ; 106 S Ct 1834 (1986)
Outcome: cited
However it is equally clear that the 20 business day time period stipulated by s 74B is intended to "spur [the Minister] to action, not to limit the scope of his authority" ( Brock v Pierce County [1986] USSC 96 ; 106 S Ct 1834 (1986) at 1841, cf Barnhart v Peabody Coal Co 123 S Ct 748 (2003) at 755). The EPBC Act recognises that, notwithstanding the time limits specified for the making of decisions, decision-making within such time limits may not always be achievable. The effect of s 156(3) and s 518(1) is to validate decisions made after the expiry of the time stipulated by the Act, including decisions made under s 74B.
Case: Butler v Attorney-General for the State of Victoria [1961] HCA 32 ; (1961) 106 CLR 268
Outcome: cited
The issue raised in submission by the applicant is encapsulated historically in the Latin maxim generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail). In my view the submission can be dealt with quickly. The rule of construction inherent in this maxim has its place only where contrariety is manifest: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 52-53, Butler v Attorney-General for the State of Victoria [1961] HCA 32 ; (1961) 106 CLR 268 at 276; R v Kearney; Ex parte Japanangka [1984] HCA 13 ; (1984) 158 CLR 395 at 421. In this case there is no inherent conflict between the operation of s 74B (or indeed Ch 4 Pt 7 Div 1A) on the one hand, and either s 156(3) or s 518(1) on the other. (I will address the applicant's submissions as to the interplay of s 74B and other provisions of Ch 4 Pt 7 later in this judgment.) The enactment of Div 1A subsequent in time to that of s 156(3) and s 518(1) gives rise to no inconsistency.
Case: Ceric v CE Heath Underwriting and Insurance (Australia) Pty Ltd [1993] NTSC 86 ; (1993) 91 NTR 26
Outcome: cited
As Mahoney JA observed in Hatton v Beaumont (1977) 2 NSWLR 211 at 225: The administration of the law would be facilitated if, in the formulating of legislation, attention were given as a matter of routine to this question. If this were done by a specific indication in the particular enactments of the effect of non-compliance with its provisions...or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statute, the cases of the present kind would be, if not avoided, at least greatly reduced in number. (cf Helman v Byron Shire Council (1995) 87 LGERA 349 at 355, Ceric v CE Heath Underwriting and Insurance (Australia) Pty Ltd [1993] NTSC 86 ; (1993) 91 NTR 26 at 39)
Case: Charles v Judicial and Legal Service Commission [2002] UKPC 34
Outcome: cited
I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: &#8226; the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or &#8226; the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E &amp; B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).
Case: Helman v Byron Shire Council (1995) 87 LGERA 349
Outcome: cited
As Mahoney JA observed in Hatton v Beaumont (1977) 2 NSWLR 211 at 225: The administration of the law would be facilitated if, in the formulating of legislation, attention were given as a matter of routine to this question. If this were done by a specific indication in the particular enactments of the effect of non-compliance with its provisions...or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statute, the cases of the present kind would be, if not avoided, at least greatly reduced in number. (cf Helman v Byron Shire Council (1995) 87 LGERA 349 at 355, Ceric v CE Heath Underwriting and Insurance (Australia) Pty Ltd [1993] NTSC 86 ; (1993) 91 NTR 26 at 39)