mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44
Outcome: followed
also respectfully agree with these observations made by his Honour and propose to follow the approach taken by his Honour in Johnson [2004] FCA 137 ; 136 FCR 494. This approach was expressly approved by a Full Court of this Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [49] to [56] (pp 247 249) and by Branson J in Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 at [31] and [32].
Case: Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44 ; (1969) 119 CLR 334
Outcome: followed
the present case, two Notices purporting to be notices under this section were given to the Attorneys-General of the States. No notice was required to be given to the Attorney-General of the Commonwealth because the Minister is a party to the proceedings (see s 78B(3)(b) and see Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44 ; (1969) 119 CLR 334 at 336 337). The first Notice is not now relied upon. The second Notice is dated 21 August 2008 and was filed in the Registry of the Court on 22 August 2008. It was served soon after. Every State (except Victoria) expressly declined to intervene. The State of Victoria has not expressly indicated a position, one way or the other. That State did not, however, seek leave to intervene in or be joined as a party to the proceedings.
Case: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 ; (1981) 54 FLR 334
Outcome: cited
applicant also submitted that I should apply what her Counsel called an implied statutory bar of five years before an immigrant is capable of being absorbed into the Australian community. This submission was founded upon some remarks made by Deane J by way of obiter dicta in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 ; (1981) 54 FLR 334 . In my view, there is no such implied bar. French J in Johnson [2004] FCA 137 ; 136 FCR 494 did not invoke such a bar. The other members of the Court in Kuswardana 35 ALR 186 ; 54 FLR 334 itself did not expressly agree with the dictum of Deane J. In my view, the application of such a bar, as an inflexible rule, introduces into the consideration of the criterion found in s 34(2)(b) of the Act an unnecessary and inappropriate level of rigidity. For example, it would mean that in every case where the relevant non-citizen had arrived after 2 April 1979, a finding would need to be made that, by reason of this fact alone, absorption had not occurred. In my judgment, as a matter of construction of the Act, no implied probationary period is prescribed. Ground 5 (The Lack of Independent Mind Ground)
Case: Lesuma v Minister for Immigration and Citizenship (No 2) (2007) 99 ALD 514; [2007] FCA 2106
Outcome: followed
ground is based upon the reasoning of Emmett J in Lesuma v Minister for Immigration and Citizenship (No 2) (2007) 99 ALD 514; [2007] FCA 2106 especially at [30] to [36]. I do not think that this ground has been made out. A fair reading of the Tribunal's reasons as a whole demonstrates that it asked itself the right question, that is to say, that it put itself in the position of the primary decision-maker and exercised for itself the discretion reposed in it. In my view, it appropriately approached the decision which it was called upon to make as requiring it to decide whether or not to exercise the discretion to cancel. Therefore, in my view, the Tribunal did not fall into error. For these reasons, I am of the view that Ground 11 has not been made out.
Case: Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 ; (2007) 159 FCR 565
Outcome: followed
Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 ; (2007) 159 FCR 565 (at [49]), a Full Court of this Court held that, for the purposes of s 477 of the Act, actual notification to an applicant of a decision of the Refugee Review Tribunal must be accomplished by physical delivery to the applicant personally of a written statement prepared by the Refugee Review Tribunal in accordance with s 430(1). The language of s 477(1) is relevantly identical to the language of s 477A(1). In the case of the Tribunal, the only statutory prescription for the giving of notification of its decision to a party to the proceedings before it is s 68AA. In terms of the reasoning applied by the Full Court in SZKKC [2007] FCAFC 105 ; 159 FCR 565 , that provision is a deeming provision. Applying the reasoning of the Full Court in that case, providing notice of the Tribunal's decision by post in accordance with s 68AA would be ineffective for the purposes of s 477 and also for the purposes of s 477A. No regulations have been passed which prescribe the manner in which a decision is to be notified for the purposes of s 477A (as to which, see s 477A(4)). Therefore, what is required in the present case for the notification required by s 477A is that a hard copy of the Tribunal's decision must be physically handed to the applicant personally. As I have already said (at [31] and [36] above), on the evidence before me, the Minister has failed to prove that a hard copy of the Tribunal's decision was ever handed to the applicant personally. Therefore, the Minister's objection to competency fails.
Case: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236
Outcome: followed
also respectfully agree with these observations made by his Honour and propose to follow the approach taken by his Honour in Johnson [2004] FCA 137 ; 136 FCR 494. This approach was expressly approved by a Full Court of this Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [49] to [56] (pp 247 249) and by Branson J in Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 at [31] and [32].
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
476A was introduced into the Act by Act No 137 of 2005 and came into force on 1 December 2005. At the same time, s 5E was added. These two sections were intended to address the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. In that case, the High Court held that, for the purposes of the Act, the expression "... decision made under the [Migration] Act ... " did not include a decision which was infected by jurisdictional error. In that case, the Court referred to such decisions as "... decisions purportedly made under the Act ... ". It may be that the effect of the 2005 amendments to the Act is to deprive s 39B of the Judiciary Act of any role to play in the judicial review by this Court of migration decisions and to confine applicants who seek such relief to the remedies provided by s 476A of the Act. In the present case, for reasons which I will explain below, I do not need to decide this question and expressly refrain from doing so. I will proceed to deal with the jurisdiction question upon the basis that the remedies potentially available to the applicant are confined to those afforded by s 476A of the Act. Section 477A is in the following terms: 477A Time limits on applications to the Federal Court (1) An application to the Federal Court for a remedy to be granted in exercise of the court's original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (2) The Federal Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Court is satisfied that it is in the interests of the administration of justice to do so. (3) Except as provided by subsection (2), the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. (4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
Case: Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 
Outcome: followed
restriction in s 477A: ... imposes a condition which is of the essence of a new right (per Windeyer J in Australian Iron &amp; Steel Limited v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488) and thus: ... stipulates an essential condition or jurisdictional requirement ... (per the High Court in Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at [9] and [10] (p 507)) for the Federal Court in respect of applications brought pursuant to s 476A of the Act. These propositions were expressly taken up and applied by Gleeson CJ and McHugh, Gummow and Heydon JJ in a joint judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 at [32] and [33] (p 198); [2004] HCA 50 ; (2004) 79 ALJR 94 (p 100) where their Honours said: The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not "bar an existing cause of action"; rather, "[i]t imposes a condition which is of the essence of a new right". [ Australian Iron &amp; Steel Ltd v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488; Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at 507 8 [10] [11]; [1999] HCA 61 ; 167 ALR 105 at 107.] Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the parliament under ss 76(ii) and 77 (i) of the Constitution . The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding. The provision of information to the unsuccessful visa applicant by the RRT is a necessary step to equip the applicant with the wherewithal to institute such a proceeding in the Federal Court. Paragraph (a) of s 478(1) stipulates that an application to the Federal Court be made in the manner specified by the Rules. At the relevant time, those Rules [O 54B r 2(1)] required that an application be in accordance with form 56. This required the applicant to describe how he or she was aggrieved by the decision, the grounds for the application, and the orders sought. That information may be acquired for use in this way by an examination of the reasons of the RRT indicated in the written statement.
Case: Shuster v Minister for Immigration and Citizenship [2008] FCA 215 ; (2008) 167 FCR 186
Outcome: followed
decision sought to be attacked by the applicant is a decision of the Tribunal. It is a decision of an administrative character. It was made pursuant to the provisions of s 500(1)(b) of the Act and was thus a decision "... made under the Act ...". For the purposes of the Act, the decision of the Tribunal was clearly a privative clause decision (see s 5(1) and s 474(2) of the Act) or a purported privative clause decision. (See s 5(1) and s 5E of the Act. See also Shuster v Minister for Immigration and Citizenship [2008] FCA 215 ; (2008) 167 FCR 186 at [5] , [13], [20], [26] and [28].) Section 474(1) of the Act is in the following terms: 474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Notwithstanding the provisions of s 474(1), s 476A of the Act invests this Court with limited original jurisdiction if (inter alia): the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500
Case: Futuris Corporation Limited (ACN 004 336 636) v Commissioner of Taxation [2006] FCA 1096
Outcome: cited
history of this matter, and another related matter, are described in the judgment of Finn J in Futuris Corporation Limited (ACN 004 336 636) v Commissioner of Taxation [2006] FCA 1096 relevantly at [2]-[10]. I respectfully adopt his Honour's description. I do not need to refer to those background facts further. For present purposes, it is sufficient to set out the pleadings and subsequent correspondence giving rise to the present application for particulars. On 15 December 2006, the applicant filed its Statement of Grounds. At paragraph 39 of the Statement of Grounds, the applicant set out the background to the applicant's tax return for the year of income ended 30 June 1998: On or about the 7 December 1998 Futuris, being a relevant entity within the meaning of Division 1B of Part VI of the ITAA 1936, furnished a return in respect of the year of income ended 30 June 1998 ("the 1998 Return"). Futuris specified in the 1998 Return: 39.1 that it had a taxable income of: $86,088,045.00 39.2 that tax payable on that taxable income was: $30,991,696.20 On 23 March 2007, the respondent filed its "Response to the Applicant's Statement of Grounds" (the Response). At paragraph 32 of the Response, the respondent pleaded: The Commissioner admits the allegations in paragraph 39 of the Applicant's Statement and says further that:- (a) the taxable income of $86,088,045 ("the declared amount") understated the taxable income for the 1998 year by $82,950,090 ("the understated amount") and the amount of $30,991,696.20 is the gross tax on the declared amount; (b) the understated amount was described in the 1998 return as "Division 19A Value Shift". The applicant submitted that, in most circumstances, it is unlikely that an issue will arise as to the alternative postulate, but submitted that the present circumstances are different because they involve a factually complicated arrangement leading up to the ultimate sale of the entity called Walshville, as described by Finn J in Futuris Corporation Limited (ACN 004 336 636) v Commissioner of Taxation [2006] FCA 1096 referred to above.
Case: Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359
Outcome: referred to
support of its contentions, the applicant referred to Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 ( Peabody's Case ), in particular at 385 where the nature of a "reasonable expectation" for the purposes of s 177C was described by the High Court as follows: A reasonable expectation requires more than a possibility. It involves a prediction as to events which would have taken place if the relevant scheme had not been entered into or carried out and the prediction must be sufficiently reliable for it to be regarded as reasonable. The applicant placed emphasis on the requirement of a "prediction". The applicant also referred to Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 where Gummow and Hayne JJ, when interpreting the similar provision s 177C(1)(b), said at [66]: In the present matters, the respondents would obtain a tax benefit if, in the terms of s 177C(1)(b), had the scheme not been entered into or carried out, the deductions "might reasonably be expected not to have been allowable". When that is read with s 177D(b) it becomes apparent that the inquiry directed by Pt IVA requires comparison between the scheme in question and an alternative postulate. To draw a conclusion about purpose from the eight matters identified in s 177D(b) will require consideration of what other possibilities existed. The applicant submitted that in order to make such a comparison, the Commissioner would have needed to identify an alternative postulate, and that identifying what would have occurred had the scheme not been entered into, ie the alternative postulate, is a critical element in contending whether a tax benefit arose.
Case: Federal Commissioner of Taxation v Hart (2004) 217 CLR 216
Outcome: referred to
support of its contentions, the applicant referred to Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 ( Peabody's Case ), in particular at 385 where the nature of a "reasonable expectation" for the purposes of s 177C was described by the High Court as follows: A reasonable expectation requires more than a possibility. It involves a prediction as to events which would have taken place if the relevant scheme had not been entered into or carried out and the prediction must be sufficiently reliable for it to be regarded as reasonable. The applicant placed emphasis on the requirement of a "prediction". The applicant also referred to Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 where Gummow and Hayne JJ, when interpreting the similar provision s 177C(1)(b), said at [66]: In the present matters, the respondents would obtain a tax benefit if, in the terms of s 177C(1)(b), had the scheme not been entered into or carried out, the deductions "might reasonably be expected not to have been allowable". When that is read with s 177D(b) it becomes apparent that the inquiry directed by Pt IVA requires comparison between the scheme in question and an alternative postulate. To draw a conclusion about purpose from the eight matters identified in s 177D(b) will require consideration of what other possibilities existed. The applicant submitted that in order to make such a comparison, the Commissioner would have needed to identify an alternative postulate, and that identifying what would have occurred had the scheme not been entered into, ie the alternative postulate, is a critical element in contending whether a tax benefit arose. The applicant also referred to Federal Commissioner of Taxation v Lenzo [2008] FCAFC 50 ; (2008) 167 FCR 255 ( Lenzo's Case ), where Sackville J noted at [120]: Since any tax benefit identified must be related to a scheme, as must any conclusion of a dominant tax avoidance purpose, the identification of the scheme and of the tax benefit is of central importance to the operation of Pt IVA: Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 at 223.
Case: Federal Commissioner of Taxation v Lenzo [2008] FCAFC 50 ; (2008) 167 FCR 255
Outcome: followed
applicant also referred to Federal Commissioner of Taxation v Lenzo [2008] FCAFC 50 ; (2008) 167 FCR 255 ( Lenzo's Case ), where Sackville J noted at [120]: Since any tax benefit identified must be related to a scheme, as must any conclusion of a dominant tax avoidance purpose, the identification of the scheme and of the tax benefit is of central importance to the operation of Pt IVA: Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 at 223.
Case: Bailey v Federal Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214
Outcome: referred to
reference was made to Bailey v Federal Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214 ( Bailey's Case ), where an application was made for particulars in the context of the predecessor of Part IVA , and the taxpayer requested particulars of the "arrangement" upon which the Commissioner's use of s 260 was based, but the Commissioner refused to supply them. It was held that the Supreme Court had power to order the Commissioner to give particulars of the "arrangement", and that such particulars should be given in the circumstances. The applicant relied on Bailey's Case , particularly at 230 where Aickin J referred with apparent approval to the decision in Tomlinson v Federal Commissioner of Taxation (1974) 23 FLR 314 where Jeffrey J concluded that in the exercise of its discretion the court will give paramountcy to the principle that the appellant should have the fullest particulars necessary to him to enable him to appraise the case which he has to disapprove and should have access to documents necessary for the proof by him of this case. With a general proposition expressed in those general terms I would respectfully agree.
Case: Tomlinson v Federal Commissioner of Taxation (1974) 23 FLR 314
Outcome: cited
reference was made to Bailey v Federal Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214 ( Bailey's Case ), where an application was made for particulars in the context of the predecessor of Part IVA , and the taxpayer requested particulars of the "arrangement" upon which the Commissioner's use of s 260 was based, but the Commissioner refused to supply them. It was held that the Supreme Court had power to order the Commissioner to give particulars of the "arrangement", and that such particulars should be given in the circumstances. The applicant relied on Bailey's Case , particularly at 230 where Aickin J referred with apparent approval to the decision in Tomlinson v Federal Commissioner of Taxation (1974) 23 FLR 314 where Jeffrey J concluded that in the exercise of its discretion the court will give paramountcy to the principle that the appellant should have the fullest particulars necessary to him to enable him to appraise the case which he has to disapprove and should have access to documents necessary for the proof by him of this case. With a general proposition expressed in those general terms I would respectfully agree.
Case: Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32
Outcome: cited
the respondent noted that the decision of the High Court in relation to the challenge to the Commissioner's Part IVA determination was handed down on 31 July 2008: Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32. On the programming orders that have been made to date in this proceeding, the evidence is filed, save for any responding evidence of the applicant. The matter is set down for hearing in a little over five weeks. The respondent submitted that the proximity to hearing should be a factor considered in the exercise of the discretion whether to order further and better particulars.
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
is a fundamental principle that a party is entitled to be informed about the opponent's case with sufficient clarity and particularity to allow that party a fair opportunity to meet the case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. The object of requiring a party to give particulars is to limit any generality in the pleadings, so as to inform the party's opponent of the nature of the case which that party must meet, and to prevent the opponent from being taken by surprise at the trial. The provision of appropriate particulars also means that unnecessary expense to the parties is avoided either in pre-trial preparation or at the hearing. The Court has power to order the furnishing of further and better particulars, whether pursuant to its inherent jurisdiction, or pursuant to Order 12 rule 5 of the Federal Court Rules . The question is whether in the circumstances that power should be exercised. The issues in the proceeding will be whether the applicant obtained a "tax benefit", and if it did, whether it could be concluded that the relevant scheme was entered into or carried out for the dominant purpose of obtaining a tax benefit.
Case: Lenzo v Commissioner of Taxation [2008] HCATrans 371
Outcome: cited
note that this approach was described by Sackville J in Lenzo's Case , and that an application for special leave to appeal to the High Court in that case was refused: Lenzo v Commissioner of Taxation [2008] HCATrans 371 (12 November 2008). In my view, the applicant is not entitled to further and better particulars of the respondent's case which it seeks. In any event, if the applicant were entitled to the sort of particulars that it seeks, the respondent has provided them. It has identified the amount of the tax benefit, and the detailed transactions by which it alleges the tax benefit was obtained. The respondent has provided all the particulars that it could sensibly be expected to provide in relation to the obtaining of a tax benefit.