mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Outcome: cited
order was quashed, and the Tribunal was directed to determine "the matter the subject of the decision according to law", by a consent order made by the Federal Magistrates Court on 29 January 2008. The order noted that the Minister acknowledged that the Tribunal had committed jurisdictional error by failing to ask itself the right question, namely whether the applicant's conscientious objection to performing military service could be regarded as a form of political opinion, or whether "conscientious objectors" could constitute a particular social group. The Minister's acknowledgment was based upon the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 ; (2002) 122 FCR 150 at [28] , affirmed in the Full Court of this Court in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1.
Case: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 ; (2007) 159 FCR 291
Outcome: discussed
on this issue, I refer to the decision of the Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 ; (2007) 159 FCR 291. I have given anxious thought to whether that decision, which is of course binding on me, dictates a different conclusion to the one I have reached. Where the Tribunal has been differently reconstituted following the quashing of its initial decision, that case decided that s 424A did not require the Tribunal as newly constituted to re-give particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. I do not think that decision dictates an opposite conclusion. Clearly, in the case of a Tribunal reconstituted under ss 422 or 422A, where the Tribunal's task is to "finish the review", that decision is apt. It may also be apt where the Tribunal has been reconstituted under s 421, where at least in one sense the process of review by its consideration of a member of the Tribunal recommences. In the latter circumstance, the activating fact to enliven s 424A must be the assessment of the information by the Tribunal as constituted. If, however, as appears to have been the case in that decision, the Tribunal as reconstituted formed the same view about certain information as the Tribunal as previously constituted, because (as the Full Court pointed out at [42]) the giving of the required notice may be given administratively, the notice given earlier would satisfy s 424A. The second ground of review, so the applicant argues, is that the Tribunal wrongly asked whether the applicant is a conscientious objector rather than whether he would refuse to undergo further military service if he were to return to Israel. For that reason, I have put the words "conscientious objector" in quotation marks in the heading to this part of my reasons. The critical part of its reasons are set out at [15] above.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088
Outcome: cited
Tribunal was obliged to consider any claim made by the applicant which could, if the asserted facts were established to the satisfaction of the Tribunal, resolve the application for a protection visa in his favour: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [23] and [32] per Gummow and Callinan JJ, Hayne J agreeing, and at [65] and [74] per Kirby J. That case involved a failure to respond to a substantial, clearly articulated argument relying upon established facts, and so a failure to exercise its jurisdiction in relation to that claim. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [63] , the Court (Black CJ, French and Selway JJ) said: It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. See also Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] .
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
Tribunal was obliged to consider any claim made by the applicant which could, if the asserted facts were established to the satisfaction of the Tribunal, resolve the application for a protection visa in his favour: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [23] and [32] per Gummow and Callinan JJ, Hayne J agreeing, and at [65] and [74] per Kirby J. That case involved a failure to respond to a substantial, clearly articulated argument relying upon established facts, and so a failure to exercise its jurisdiction in relation to that claim. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [63] , the Court (Black CJ, French and Selway JJ) said: It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. See also Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] .
Case: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157
Outcome: cited
Tribunal was obliged to consider any claim made by the applicant which could, if the asserted facts were established to the satisfaction of the Tribunal, resolve the application for a protection visa in his favour: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [23] and [32] per Gummow and Callinan JJ, Hayne J agreeing, and at [65] and [74] per Kirby J. That case involved a failure to respond to a substantial, clearly articulated argument relying upon established facts, and so a failure to exercise its jurisdiction in relation to that claim. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [63] , the Court (Black CJ, French and Selway JJ) said: It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. See also Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] .
Case: R v District Court of Queensland Northern District; Ex parte Thompson [1968] HCA 48 ; (1968) 118 CLR 488
Outcome: cited
do not need to consider the contention that the Tribunal, by focusing on the term "conscientious objector" as it is explained in the context of s 29A of the National Service Act 1951 (Cth) in R v District Court of Queensland Northern District; Ex parte Thompson [1968] HCA 48 ; (1968) 118 CLR 488 at 492, failed to ask itself the correct question under the Convention. I have reached the view that it failed to consider the applicant's claim to have been a conscientious objector according to law. The third contention of the applicant can be shortly dealt with.
Case: AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175
Outcome: cited
The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 40 Finally, even if an item of expenditure cannot be traced to a particular item of income that fact of itself does not mean that the expenditure is not deductible: Total Holdings at 224 and the authorities there cited. However, an item of expenditure may not be deductible if it was incurred at a point too soon before the income producing activity commenced or if it was incurred after the income producing activity has ceased: Steele at [44]; Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; Riverside Road Lodge at 313; Amalgamated Zinc at 309 and AGC (Advances) at 197-198.
Case: Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428
Outcome: cited
Spriggs submitted that the management fee was, as the invoice stated, for " management and promotional services by CSM for season 2004 " and that those services were not identified. I reject that contention. A label is never determinative: Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) ATC 4659 at 4668; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 ; Hallstroms Pty Ltd v Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 and Sun Newspapers Ltd &amp; Associated Newspapers Ltd v Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337. The fee paid by Spriggs to CSM was payment for Connors of CSM negotiating a playing contract with an AFL club. The playing contract facilitated the generation of income of both Football Payments and Additional Services Payments. CSM negotiated each of Spriggs' AFL playing contracts. That is not surprising. Mr Shinners from AFLPA said that it is rare for a player to negotiate his own playing contract and he estimates 90% of AFL players currently have an accredited agent. Consistent with the terms of the Representation Agreement, Connors from CSM also negotiated the activities that generated or produced all of Spriggs' income from "Additional Services". 66 An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).
Case: Commissioner of Taxation (Cth) v Broken Hill Pty Co Ltd (2000) ATC 4659
Outcome: cited
Spriggs submitted that the management fee was, as the invoice stated, for " management and promotional services by CSM for season 2004 " and that those services were not identified. I reject that contention. A label is never determinative: Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) ATC 4659 at 4668; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 ; Hallstroms Pty Ltd v Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 and Sun Newspapers Ltd &amp; Associated Newspapers Ltd v Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337. The fee paid by Spriggs to CSM was payment for Connors of CSM negotiating a playing contract with an AFL club. The playing contract facilitated the generation of income of both Football Payments and Additional Services Payments. CSM negotiated each of Spriggs' AFL playing contracts. That is not surprising. Mr Shinners from AFLPA said that it is rare for a player to negotiate his own playing contract and he estimates 90% of AFL players currently have an accredited agent. Consistent with the terms of the Representation Agreement, Connors from CSM also negotiated the activities that generated or produced all of Spriggs' income from "Additional Services".
Case: Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305
Outcome: cited
However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499. 39 The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 40 Finally, even if an item of expenditure cannot be traced to a particular item of income that fact of itself does not mean that the expenditure is not deductible: Total Holdings at 224 and the authorities there cited. However, an item of expenditure may not be deductible if it was incurred at a point too soon before the income producing activity commenced or if it was incurred after the income producing activity has ceased: Steele at [44]; Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; Riverside Road Lodge at 313; Amalgamated Zinc at 309 and AGC (Advances) at 197-198.
Case: Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217
Outcome: cited
The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 40 Finally, even if an item of expenditure cannot be traced to a particular item of income that fact of itself does not mean that the expenditure is not deductible: Total Holdings at 224 and the authorities there cited. However, an item of expenditure may not be deductible if it was incurred at a point too soon before the income producing activity commenced or if it was incurred after the income producing activity has ceased: Steele at [44]; Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; Riverside Road Lodge at 313; Amalgamated Zinc at 309 and AGC (Advances) at 197-198. 42 Whether an outgoing incurred by a taxpayer satisfies one or more of the positive limbs for deductibility depends upon the facts of each case: Maryborough Newspapers Co Ltd v Commissioner of Taxation [1929] HCA 16 ; (1929) 43 CLR 450 and Total Holdings at 223.
Case: Federal Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35 ; (2006) 80 ALJR 1282
Outcome: cited
The classic test for resolving the distinction between capital and revenue is that stated by Dixon J in Sun Newspapers Ltd at 363: "There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment." See also Federal Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35 ; (2006) 80 ALJR 1282 at [147] and GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137. 66 An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).
Case: Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90
Outcome: cited
An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).
Case: Federal Commissioner of Taxation v Snowden &amp; Willson Pty Ltd [1958] HCA 23 ; (1958) 99 CLR 431
Outcome: cited
The limb is not confined to circumstances where the income is derived from carrying on a business: Fairfax at 40 and Federal Commissioner of Taxation v Snowden &amp; Willson Pty Ltd [1958] HCA 23 ; (1958) 99 CLR 431 at 435-6.
Case: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1
Outcome: cited
However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499. 39 The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197.
Case: GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124
Outcome: cited
The classic test for resolving the distinction between capital and revenue is that stated by Dixon J in Sun Newspapers Ltd at 363: "There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment." See also Federal Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35 ; (2006) 80 ALJR 1282 at [147] and GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137.