mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Telstra Corporation Ltd v Australian Competition &amp; Consumer Commission [2006] FCA 737
Outcome: cited
there is some further reason why the applicants should provide discovery of those documents, it is unnecessary to make an order requiring them to do so (note recent similar comments of Bennett J in Telstra Corporation Ltd v Australian Competition &amp; Consumer Commission [2006] FCA 737 at par 31). In relation to the documents after 22 March 2005, on the basis that the documents are in the possession, custody or power of the administrator, in my view the applicants are not required to discover them for the reasons I have already explained in relation to documents held by the administrator. Item 13 Westpac and ANZ documents and correspondence I note that the respondents have stated that this documentation will lead to a train of inquiry which would advance their case or damage the applicants' case. I have already held that this test is not applicable in this case. The respondents state that the documents are relevant to reliance, and point to par 18 of the amended Statement of Claim and par 17 of the Defence. In my view the documents sought fall within O 15 r 2(3) and should be discovered. Item 15 Copies of all cash flow
Case: SZJOC v Minister for Immigration and Citizenship [2008] FMCA 637
Outcome: referred to
In SZJOC v Minister for Immigration and Citizenship [2008] FMCA 637 the learned Federal Magistrate said at [52]: '... I have looked at the Tribunal decision and supporting material in order to ascertain whether any arguable case of jurisdictional error could be made to which the Applicant has not referred. I am unable to discern any arguable case of jurisdictional error and I am of the belief that there is none.' 12 I do not share the view so expressed by the learned Federal Magistrate. 13 In support of the Notice of Appeal the appellant was invited to address the Court, which she did in an unusual way. She had the advantage of having in Court before me an interpreter who was able to translate both from Fuqingnese and also from Mandarin into English and vice versa. The submission which was made by the appellant took the form of a written document apparently in Mandarin which the interpreter interpreted into English for my benefit. I did not invite the interpreter to interpret that submission into Fuqingnese in circumstances where the appellant had said that it was what she wished to rely upon.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
As Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [48] , procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
In relation to country information there is an express exclusion in s 424A(3)(a) of the Act which relieves the Tribunal of an obligation to give an applicant particulars of such information with a view to inviting comment on it. In the light of the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 it seems clear to me that there has been no failure on the part of the Tribunal to comply with s 424A of the Act in the circumstances of this case having regard to the submissions that were advanced by the appellant. 17 In my opinion none of the grounds of appeal in this case have been made out, with perhaps one exception, that is to say, the assertion in ground 1 that the learned Federal Magistrate failed to consider that the decision of the Tribunal had 'constituted a jurisdictional error'. 18 Section 430 of the Act relevantly provides: '430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.' 19 As has been pointed out by the High Court, s 430 cannot be used as a back door route to a merits review of a Tribunal decision. In this case there was plainly both written material before the Tribunal and also country information to which it had access and an oral hearing at which evidence was given, which is not available to the Court as no transcript was tendered in the Federal Magistrates Court of what had been said at the second Tribunal hearing, or indeed at the first Tribunal hearing.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Nevertheless, it is important to bear in mind what Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [10] which was repeated in generally similar terms in the joint judgment of McHugh, Gummow and Hayne JJ in the same case at [69]. The Chief Justice said: '10 The requirement imposed by s 430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, "sets out the findings" on any material questions of fact. It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction ...'
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
It should not be overlooked that in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said: '... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. ...' 22 In relation to applications for the grant of protection visas a critical section is s 65 which relevantly provided: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: ... (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; ... ... is to grant a visa; or (b) if not so satisfied, is to refuse to grant the visa.' 23 In respect of protection visas, s 36(2) of the Act relevantly provided: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; ... The references to the Refugees Convention and to the Refugees Protocol are references to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (hereafter collectively referred to as 'the Convention').
Case: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1
Outcome: referred to
Whether under s 36(2) Australia has protection obligations to a particular person depends upon whether that person satisfies the definition of a refugee in Article 1A of the Convention in the context of the other relevant Articles (per Gummow A-CJ, Callinan, Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 ('QAAH') [37]. In Article 1A(2) of the Convention, the term 'refugee' applies to any person who: '... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...' 25 The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for a classification as a refugee. The first condition is that a person be outside their country of nationality 'owing to' fear of persecution for a relevant convention reason which is well-founded both in an objective and a subjective sense.
Case: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1
Outcome: referred to
The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection' of the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality, that particular reason being well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') [16]. See also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan"), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) [2004] HCA 18 ; 222 CLR 1 (' S152 ') [19]).
Case: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634
Outcome: referred to
The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection' of the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality, that particular reason being well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') [16]. See also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan"), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) [2004] HCA 18 ; 222 CLR 1 (' S152 ') [19]).
Case: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: referred to
The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection' of the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality, that particular reason being well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') [16]. See also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan"), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) [2004] HCA 18 ; 222 CLR 1 (' S152 ') [19]).
Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: referred to
The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection' of the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality, that particular reason being well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') [16]. See also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan"), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) [2004] HCA 18 ; 222 CLR 1 (' S152 ') [19]).
Case: Minister for Immigration for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: referred to
The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection' of the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality, that particular reason being well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') [16]. See also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan"), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) [2004] HCA 18 ; 222 CLR 1 (' S152 ') [19]).
Case: WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Outcome: applied
Before proceeding to consider the Statement of Decision and Reasons in detail it is appropriate to have regard to the observations of Mansfield, Jacobson and Siopis JJ in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28] where their Honours indicated that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion and then went on to say: '28. ... Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.' 29 As previously mentioned the Tribunal made reference to the appellant's written statement setting out her reasons for claiming to be a refugee. On the fourth and fifth pages of its Statement of Decision and Reasons the Tribunal proceeded to summarise that statement. The statement was recorded in English and contained within a statutory declaration made by the appellant on 6 February 2006. It contained 11 numbered paragraphs. The appellant claimed to be a Christian (see paragraphs 9 and 11). The appellant claimed to have attended some religious gatherings organised by a family church in her home village from around 2002 (see paragraph 3). She claimed to have been impressed by the kindness of 'religious sisters and brothers' (see paragraph 3). She claimed to have participated in weekly worship on a regular basis (see paragraph 3) and she claimed that in July 2003 she was baptised at a 'religious sister's home in my village' (see paragraph 3). 30 The appellant claimed that the Public Security Bureau ('PSB') took action in respect of religious observance in the area in which the appellant lived (see paragraphs 4, 5, 6, 8 and 9 of the statement). The appellant claimed that she had been detained for one day in December 2003, that she had been detained for one week in April 2004 and that she was detained for one month from May to June 2005 (see paragraphs 4, 5 and 8). The appellant claimed that to secure her release from detention, she made payments of RMB 1000 yuan, 3000 yuan and 10,000 yuan (see paragraphs 4, 5 and 9).
Case: Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884
Outcome: cited
Nevertheless, and this is the third observation, the remedies available under s 1323 are dramatic and the court should exercise care before making any order. While it is not necessary to show that the aggrieved person in fact has a case against the relevant person in order to obtain an interim injunction, the strength of the case is important. If the investigation is in its early stages it may be enough to show a possible case against the relevant person or the person on whose behalf the relevant person holds property. If the investigation is in late stages, or has been completed, probably no order should be made (or continued) unless the evidence suggests a prime facie case of liability: see generally Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884; Corporate Affairs Commission (SA) v Lone Star Exploration NL (No 2) (1988) 14 ACLR 499; Australian Securities Commission v A S Nominees Ltd (1995) 18 ACSR 459, 511-512.
Case: Corporate Affairs Commission (SA) v Lone Star Exploration NL (No 2) (1988) 14 ACLR 499
Outcome: cited
Nevertheless, and this is the third observation, the remedies available under s 1323 are dramatic and the court should exercise care before making any order. While it is not necessary to show that the aggrieved person in fact has a case against the relevant person in order to obtain an interim injunction, the strength of the case is important. If the investigation is in its early stages it may be enough to show a possible case against the relevant person or the person on whose behalf the relevant person holds property. If the investigation is in late stages, or has been completed, probably no order should be made (or continued) unless the evidence suggests a prime facie case of liability: see generally Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884; Corporate Affairs Commission (SA) v Lone Star Exploration NL (No 2) (1988) 14 ACLR 499; Australian Securities Commission v A S Nominees Ltd (1995) 18 ACSR 459, 511-512.
Case: Australian Securities Commission v A S Nominees Ltd (1995) 18 ACSR 459
Outcome: cited
Nevertheless, and this is the third observation, the remedies available under s 1323 are dramatic and the court should exercise care before making any order. While it is not necessary to show that the aggrieved person in fact has a case against the relevant person in order to obtain an interim injunction, the strength of the case is important. If the investigation is in its early stages it may be enough to show a possible case against the relevant person or the person on whose behalf the relevant person holds property. If the investigation is in late stages, or has been completed, probably no order should be made (or continued) unless the evidence suggests a prime facie case of liability: see generally Corporate Affairs Commission (NSW) v Walker (1987) 11 ACLR 884; Corporate Affairs Commission (SA) v Lone Star Exploration NL (No 2) (1988) 14 ACLR 499; Australian Securities Commission v A S Nominees Ltd (1995) 18 ACSR 459, 511-512.