mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456
Outcome: referred to
third matter argued before the Federal Magistrate was that the Tribunal had failed to conduct a hearing in accordance with s 425 of the Act because it had not given the appellant a substantial opportunity to give evidence and to present arguments in relation to her claim to have been a conscientious objector and to have a well-founded fear of persecution by reason of that claim. The Federal Magistrate concluded, having reviewed the hearing before the Tribunal, that the appellant had the opportunity to raise with the Tribunal any decision by her to refuse to perform military service on the part-time basis required of her if she were to return to Israel, but that she but did not do so. His Honour noticed, correctly, that the main focus of the appellant before the Tribunal was her fear to return to Israel principally from fear for her physical safety given the terrorist threats to the country. He did not consider that the exploration of those issues by the Tribunal was conducted in a way which dissuaded or discouraged her from pursuing an aspect of her claim: cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456. Each of those three matters was reargued on appeal, and in respect of each of them counsel for the appellant argued that the Federal Magistrate had erred in his approach to those three matters. In essence, however, the argument centred upon and depended upon the appellant persuading the Court that the Federal Magistrate had erred in not identifying that the appellant had raised before the Tribunal an unarticulated claim to have a well-founded fear of persecution by reason of how she might be treated by the Israeli authorities were she to return to Israel and in face of her conscientious objection which (it was argued) she had signalled to the Tribunal.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456 ; (1993) 43 FCR 280
Outcome: referred to
have identified the focus of submissions on the appeal in that way because, notwithstanding the general observations of the Tribunal set out in [6] above which may demonstrate legal error, they do not do so relevantly except in the context of a claim by the appellant to be a conscientious objector. I would otherwise read the Tribunal's observations in that passage, with an eye not keenly attuned to the perception of error (see Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456 ; (1993) 43 FCR 280) , as indicating no more than that the enforcement of laws for compulsory military service do not of themselves provide a basis for a claim of persecution merely because those obliged to undertake compulsory military service might thereby be at greater risk than civilians. If the appellant were not in fact a conscientious objector, there was nothing to indicate that she was required to undertake compulsory military service for a Convention reason or that she would then be treated differently whilst doing so for a Convention reason. Indeed, counsel for the appellant appeared to accept as much. At one point, he said that the error discussed by the Federal Magistrate flowed from failing to ask what would happen to the appellant if she is a conscientious objector.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: referred to
Tribunal was obliged to deal with any claim raised by the evidence or contentions which, if resolved in one way, could resolve the application: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] and [63] provided the claim has been squarely raised. As noted, the Federal Magistrate properly identified that obligation. However, his Honour did not consider that there was any unarticulated claim for refugee status on the basis of a fear of persecution arising from a conscientious objection to military service. In my judgment, the Federal Magistrate erred in that conclusion. Clearly, the appellant's main concern was that she and all Israeli citizens may be exposed to Palestinian or other terrorist violence, and that the Israeli authorities are unable to protect its citizens from such acts. Whether as a civilian or while doing compulsory military service, that fear (as the Tribunal found) was not one for a Convention reason. There is no challenge to that conclusion before the Federal Magistrate, and hence on this appeal. However, in my view, there was also squarely raised on the material a claim that the appellant feared persecution by reason of being a conscientious objector to further compulsory military service. That claim was not addressed by the Tribunal. It should have been. If it was, and if it was addressed in the manner set out in [6] above, that claim would have been incorrectly addressed for the reasons discussed by the Federal Magistrate. The Tribunal would have needed to consider, in the appellant's particular circumstances, the reason for her objection to compulsory military service to determine whether the consequence of such objection might amount to persecution for a Convention reason. Those questions were not considered by the Tribunal. The claim was not specifically articulated, but in the passages I have referred to it is apparent that: (1) the appellant expressed criticism not simply of the Palestinian or other terrorist activities but also of the response of the Israeli government; (2) she did not see the situation as "an ordinary thing" where she would simply live with that situation; and (3) she adverted on two occasions to the prospect of being imprisoned by the Israeli government for refusing to do further compulsory military service, and (on one of those occasions) of a fear of that consequence.
Case: Singh &amp; Ors v Minister for Immigration &amp; Anor [2007] FMCA 1739
Outcome: affirmed
This is an appeal to the Federal Court from the decision of Federal Magistrate Turner in Singh &amp; Ors v Minister for Immigration &amp; Anor [2007] FMCA 1739 given on 9 November 2007. 2 His Honour found that by operation of s 46 of the Migration Act 1958 (Cth) (the Act), the first appellant could not make a valid application for a Graduate Skilled (Class UQ) (Temporary), Subclass 497 visa lodged on 25 March 2002. His Honour concluded that the Migration Review Tribunal (the Tribunal) had made no error of law in reaching that conclusion. 3 The appeal to this Court, while it has to be seen against a very extended and extensive history of litigation, ultimately involves a short point: the appellant contends that as condition 8534 of Schedule 8 of the Migration Regulations 1994 (Migration Regulations) does not contain the phrase "despite anything else in this Act", it is not a condition described in s 41(2)(a) of the Act, and therefore, s 46(1A) has no application to an application by a person who holds a visa that is subject to condition 8534. 4 For the reasons which follow, I am satisfied that condition 8534 is a condition described in s 41(2)(a) of the Act, and the Tribunal and the Federal Magistrate were right to so conclude. The consequence is that the appeal has to be dismissed with costs. 5 What follows are my reasons for that conclusion.
Case: Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: cited
Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 , Rares J observed that the Court ought to be very cautious to ensure that an injustice is not done to a party by summarily dismissing a proceeding where there may be contested questions of fact to be determined at trial and the resolution of that factual controversy might go one way or the other. Rares J also observed that s 31A is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. That view has been followed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 416 per Jacobson J [39]; Hicks v Ruddoch [2007] FCA 299 ; (2007) 156 FCR 574 per Tamberlin J [13] and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 per Edmond J [10] to [15].
Case: Hicks v Ruddoch [2007] FCA 299 ; (2007) 156 FCR 574
Outcome: cited
Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 , Rares J observed that the Court ought to be very cautious to ensure that an injustice is not done to a party by summarily dismissing a proceeding where there may be contested questions of fact to be determined at trial and the resolution of that factual controversy might go one way or the other. Rares J also observed that s 31A is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. That view has been followed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 416 per Jacobson J [39]; Hicks v Ruddoch [2007] FCA 299 ; (2007) 156 FCR 574 per Tamberlin J [13] and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 per Edmond J [10] to [15].
Case: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Outcome: cited
Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 , Rares J observed that the Court ought to be very cautious to ensure that an injustice is not done to a party by summarily dismissing a proceeding where there may be contested questions of fact to be determined at trial and the resolution of that factual controversy might go one way or the other. Rares J also observed that s 31A is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. That view has been followed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 416 per Jacobson J [39]; Hicks v Ruddoch [2007] FCA 299 ; (2007) 156 FCR 574 per Tamberlin J [13] and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 per Edmond J [10] to [15].
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: cited
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 ; (2008) 167 FCR 372 , Finkelstein J at [22] suggested, in these terms, that s 31A of the Act had raised the bar in resisting dismissal of a proceeding: If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits . It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial. [emphasis added] Justice Gordon in Jefferson Ford at [126] suggested that an assessment of whether a proceeding has no reasonable prospect of success requires an analysis of the pleadings, an assessment of the facts and, in part at least, a review of some of the evidence. In the present proceeding, there has been no engagement by the respondents with the amended pleading. That partly arises because the respondents contend that the amended pleading fails to plead material facts which establish, if proved, a cause of action based on accessorial liability on the part of Mr Sasse. Therefore, there can be no relevant engagement or an assessment in terms of the methodology contemplated by either Gordon J or Finkelstein J. Moreover, there can be no proper assessment of whether there is a genuine dispute as to factual matters as the material threshold facts have not been pleaded. The applicants say that the pleading properly asserts material facts from which, if proved, accessorial liability in Mr Sasse can be established. Nevertheless, the applicants say that the application by the respondents is premature and, in any event, the application should be treated as an application going to the adequacy of the amended pleading. If the Court is not satisfied that the amended pleading properly frames material facts establishing a cause of action in accessorial liability, the relevant paragraphs of the pleading ought to be dismissed and the applicants ought to be given leave to re-plead the claims. The first question then is whether the amended pleading properly frames a cause of action in accessorial liability on the part of Mr Sasse. The statutory framework
Case: Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd &amp; Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121).
Case: Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473
Outcome: cited
pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd &amp; Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121).
Case: Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302
Outcome: cited
pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd &amp; Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121).
Case: Rural Press Ltd &amp; Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236
Outcome: cited
pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd &amp; Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121).
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466
Outcome: cited
pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd &amp; Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121).
Case: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121
Outcome: cited
pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke &amp; Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd &amp; Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121).
Case: MIMA v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: cited
Second, the Act clearly sets the parameters for the operation of principles of natural justice, and excludes relevant common law rules: MIMA v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 and SZCIJ v MIMIA [2006] FCAFC 62. Section 422B(1) provides: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Case: SZCIJ v MIMIA [2006] FCAFC 62
Outcome: cited
Second, the Act clearly sets the parameters for the operation of principles of natural justice, and excludes relevant common law rules: MIMA v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 and SZCIJ v MIMIA [2006] FCAFC 62. Section 422B(1) provides: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.