mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Outcome: considered
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 , Emmett, Kenny and Jacobson JJ reviewed the constraints imposed by s 422B of the Migration Act 1958 (Cth) ("the 1958 Act"), being a provision contained in Part 7 Division 4 of that Act. In doing so they observed that " there was nothing in Division 4 to indicate that any of the procedural powers contained in it were to be used fairly " and that " it was possible that those powers could be used in ways that were not fair, without infringing the procedural requirements of Division 4 ": [2009] FCAFC 83 at [18] . Their Honours further observed: [68] While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO's Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case ( VAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 117 at [64] ). WACO's Case does not establish any new principle. Because the June 2008 letter was forwarded after the conclusion of the hearing, no opportunity thus presented itself to the Tribunal to confront the Applicant with those further concerns that emerged during the preparation of its reasons for decision, unless the Tribunal chose to convene a further hearing. But no generally expressed " unfairness " arose as a result of the manner in which the Tribunal proceeded and no jurisdictional error is exposed. Considerations as to whether a document is a forgery or whether there are other reasons why a document should be given little or no weight may presently be left to one side. Of present relevance is the fact that the Applicant had been " sufficiently alerted " by the Tribunal as to its concerns in respect to documents such as the June 2008 letter. To go further and impose upon the Tribunal a requirement to alert the Applicant to each and every factor which may weigh upon the Tribunal when assessing the weight to be given to that letter would be to impose a requirement to disclose its deliberative process.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.
Case: SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566
Outcome: applied
the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.
Case: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314
Outcome: applied
the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1
Outcome: applied
the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.
Case: SZMRS v Minister for Immigration and Citizenship [2009] FMCA 263
Outcome: affirmed
Federal Magistrate dismissed the proceeding on 31 March 2009: SZMRS v Minister for Immigration and Citizenship [2009] FMCA 263. An Application for an Extension of Time to file and serve a notice of appeal, a supporting Affidavit and a Draft Notice of Appeal were filed in this Court on 23 April 2009. The Draft Notice of Appeal identified the Ground of Appeal as follows: ... the Magistrate made an error in the finding that there was no jurisdictional error. The Applicant appeared before this Court on the hearing of the Application and the Appeal on 5 August 2009. He appeared unrepresented although he did have the assistance of an interpreter. As events transpired, the services of the interpreter proved unnecessary. The Applicant was able to follow the oral submissions advanced on behalf of the Minister by his Counsel.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 , 206 ALR 471
Outcome: cited
the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.
Case: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Outcome: cited
has been further observed that " [t]he discretion to extend time is given for the purpose of enabling the court to do justice between the parties ": WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] per Lee, Nicholson and Finkelstein JJ. The discretion to grant an extension of time is obviously not confined to those circumstances in which an appeal would thereafter succeed. An extension may be granted where, to do justice between the parties, the Court should consider and resolve a case on its merits rather than resolving it by reference to a failure to comply with a procedural requirement. In circumstances such as the present, where it is considered that an applicant seeking an extension of time has a case of some merit, where the extent of the delay is minimal and where no prejudice has been occasioned to the respondent, an extension of time should normally be granted. In the present proceeding, an extension of time is granted pursuant to O 52 r 15(2) extending the time within which a Notice of Appeal may be filed to 23 April 2009. The draft of the proposed Notice of Appeal as filed on that date is to be treated as the Notice of Appeal .
Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Outcome: discussed
The principles that apply to transfer are well settled. In National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, at 162, a Full Court (Bowen CJ, Woodward and Lockhart JJ) said that: " The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. " The Court observed that the power conferred by s 48 of the Federal Court of Australia Act 1976 (Cth) recognises the national character of the Court. The Court added, at 162: " The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. ... Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely. " 7 Although this proceeding has been commenced in the Victorian District Registry of the Court, the case has no ties whatsoever to Victoria. The applicant resides in Queensland. Both respondents are resident in Queensland. Similarly, all events underlying the dispute occurred in Queensland. In any other case, all the relevant factors would support the contemplated transfer. The applicant submits, however, that the respondents will be subject to a conflict of interest if the matter is transferred to Queensland. It is true that the respondents are a registrar and judge whose responsibilities in large part concern the work of the Court in Queensland. It does not follow from this, however, that the applicant's case cannot properly be dealt with in the Queensland District Registry, which has the benefit of more than one registrar and judge. 8 For these reasons, I would order, pursuant to O 10 r 1(2)(f) of the Federal Court Rules 1979 , that proceeding VID 1592 of 2005 be transferred to the Queensland District Registry of this Court . I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 7 April 2006 Counsel for the Applicant: The Applicant appears in person Counsel for the Respondents: The Respondents did not appear Date Submissions Received: 8 March 2006 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/384.html
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: cited
On 19 October 2006 the then Minister for Immigration and Multicultural Affairs, acting personally, decided to cancel Chaouki Nassif's visa pursuant to s 501(2) of the Migration Act 1958 (Cth). Mr Nassif has applied for an order quashing the decision of the Minister. By his amended application, Mr Nassif claims that the Minister failed to warn him that she did not intend to treat the best interests of a child, namely Joshua Young, as a primary consideration in making the decision, and additionally failed to consider whether she was required to treat Joshua's best interests as a primary consideration (see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273). Joshua, who at the time of the Minister's decision was 12 years old, is the son of Mr Nassif's fianc&eacute;e, Ms Sharon Young. 2 It is uncontentious that the Minister did not advise Mr Nassif that it was not her intention to treat the best interests of Joshua as a primary consideration in making her decision. It is also uncontentious that she did not treat the best interests of Joshua as a primary consideration in making her decision. 3 The parties agree that in the circumstances of this case the Minister was only obliged to treat the best interests of Joshua as a primary consideration if Mr Nassif had a "parental or other close relationship" with Joshua. The phrase "parental or other close relationship" comes from Ministerial General Direction No 21. The parties also agree that the information before the Minister was such as to require her to turn her mind to whether Mr Nassif had such a relationship with Joshua. 4 The only issue to be determined is thus whether it is appropriate for the Court to conclude, on the balance of probabilities, that the Minister did not give consideration to whether the relationship between the Mr Nassif and Joshua was a "parental or other close relationship". For the reasons set out below I am of the view that it is appropriate for the Court to so conclude. 5 The Minister signed a statement of reasons in respect of her decision. The statement records that, after concluding that she was empowered by s 501(2) of the Act to cancel Mr Nassif's visa, the Minister turned to consider whether to exercise her discretion to do so.
Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 
Outcome: applied
In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 the High Court held that s 501(2) is a valid exercise of the Federal Parliament's power to make laws with respect to aliens. Similar arguments to those put in this case were put to the Full Court of this Court in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292. The Court considered the authorities relevant to the relationship between laws providing for the deportation of aliens and the cancellation of their visas and Chapter 111 of the Constitution and then summarised the effect of those authorities in the following propositions (at [66]): '1. Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law. 2. Under Chapter III of the Constitution , the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution . 3. Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual. 4. Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty. 5. Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment. 6. Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.'
Case: Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494
Outcome: cited
Whether a person has been absorbed into the Australian community and thereby ceased to be an immigrant requires a consideration of a number of the factual matters of which French J provided a summary in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 at 510 [46] . 19 It seems to me that it is likely the applicant fell within the terms of s 34 of the Act and I am prepared to assume that he held an absorbed person visa on 1 September 1994. 20 The applicant submits that he could only hold one visa at a time and therefore he did not also hold a transitional permanent visa on 1 September 1994. He referred to s 82(2) of the Act which is in the following terms: '(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.'