mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2002) 65 ALD 141
Outcome: cited
The appellant says a proper inference can not be drawn from the country information relied upon by the Tribunal that an applicant for a passport is of no interest to PRC authorities on grounds of prior protest conduct for reasons of political opinion, simply because the applicant obtains a passport and achieves an objective of lawfully leaving China. However, five things should be noted. First, the Tribunal was entitled to prefer the country information it obtained and rely upon it in discharging its fact-finding role ( NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 [11] and [41], relying upon VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291 and VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25] ). Secondly, the finding is primarily supported by the Tribunal's assessment of the appellant's evidence. Thirdly, the appellant accepted that he had not engaged in protest activity and explained the conjunction of circumstances causing that to be so. Fourthly, even if no proper inference arises out of the older country information, the Tribunal did not act on 'no evidence' in reaching its finding as evidence (that is, the appellant's own evidence) supported the finding. Fifthly, the question of whether there is any evidence of a particular fact is a question of law just as whether a particular inference can be drawn from facts found or agreed is a question of law. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, clearly enough, there is no error of law in simply making a wrong finding of fact. In addition, even if the reasoning upon which the decision-maker reached its conclusion of fact is demonstrated to be unsound, that would not amount to error of law ( Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2002) 65 ALD 141 per Sundberg, Emmett and Finkelstein JJ at [34]). Even if it is accepted that the earlier country information did not support an inference drawn by the Tribunal, there was nevertheless evidence before the Tribunal supporting the findings of fact.
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
The Tribunal's reference to the country information upon which it relied is said to reflect a less rigorous standard for assessing prospective risk and reflects an approach on the part of the Tribunal of simply relying upon out of date and irrelevant information rather than an inquiring or analytical approach to the question before it. Two things should be noted about this contention. First, it is clear from the Tribunal's reasons that it comprehensively reviewed all of the evidence both in terms of the appellant's written evidence and the evidence of the witnesses at the hearing. Thus, the Tribunal did not simply rely upon 'old decision templates'. Rather, the Tribunal asked itself whether it could be satisfied on all the material that the appellant held a well-founded fear of persecution for a Convention reason should he return to the PRC. Secondly, to the extent that the appellant's contention raises the notion of bias on the part of the Tribunal, there is no basis for such a ground of challenge. There is no evidence of pre-judgment by the Tribunal ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , per Gleeson CJ and Gummow J at [71] and [72]). If the contention is one of apprehended bias rather than actual bias, no fair-minded lay observer examining the reasons of the Tribunal could reasonably apprehend bias ( Re Refugee Review Tribunal &amp; Anor; Ex parte H &amp; Anor [2001] HCA 28 ; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] - [32]; Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644 at 647 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Expectation Pty Ltd v PRD Realty Pty Ltd &amp; Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160).
Case: Re Refugee Review Tribunal &amp; Anor; Ex parte H &amp; Anor [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
The Tribunal's reference to the country information upon which it relied is said to reflect a less rigorous standard for assessing prospective risk and reflects an approach on the part of the Tribunal of simply relying upon out of date and irrelevant information rather than an inquiring or analytical approach to the question before it. Two things should be noted about this contention. First, it is clear from the Tribunal's reasons that it comprehensively reviewed all of the evidence both in terms of the appellant's written evidence and the evidence of the witnesses at the hearing. Thus, the Tribunal did not simply rely upon 'old decision templates'. Rather, the Tribunal asked itself whether it could be satisfied on all the material that the appellant held a well-founded fear of persecution for a Convention reason should he return to the PRC. Secondly, to the extent that the appellant's contention raises the notion of bias on the part of the Tribunal, there is no basis for such a ground of challenge. There is no evidence of pre-judgment by the Tribunal ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , per Gleeson CJ and Gummow J at [71] and [72]). If the contention is one of apprehended bias rather than actual bias, no fair-minded lay observer examining the reasons of the Tribunal could reasonably apprehend bias ( Re Refugee Review Tribunal &amp; Anor; Ex parte H &amp; Anor [2001] HCA 28 ; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] - [32]; Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644 at 647 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Expectation Pty Ltd v PRD Realty Pty Ltd &amp; Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160).
Case: Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644
Outcome: cited
The Tribunal's reference to the country information upon which it relied is said to reflect a less rigorous standard for assessing prospective risk and reflects an approach on the part of the Tribunal of simply relying upon out of date and irrelevant information rather than an inquiring or analytical approach to the question before it. Two things should be noted about this contention. First, it is clear from the Tribunal's reasons that it comprehensively reviewed all of the evidence both in terms of the appellant's written evidence and the evidence of the witnesses at the hearing. Thus, the Tribunal did not simply rely upon 'old decision templates'. Rather, the Tribunal asked itself whether it could be satisfied on all the material that the appellant held a well-founded fear of persecution for a Convention reason should he return to the PRC. Secondly, to the extent that the appellant's contention raises the notion of bias on the part of the Tribunal, there is no basis for such a ground of challenge. There is no evidence of pre-judgment by the Tribunal ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , per Gleeson CJ and Gummow J at [71] and [72]). If the contention is one of apprehended bias rather than actual bias, no fair-minded lay observer examining the reasons of the Tribunal could reasonably apprehend bias ( Re Refugee Review Tribunal &amp; Anor; Ex parte H &amp; Anor [2001] HCA 28 ; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] - [32]; Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644 at 647 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Expectation Pty Ltd v PRD Realty Pty Ltd &amp; Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160).
Case: Expectation Pty Ltd v PRD Realty Pty Ltd &amp; Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160
Outcome: cited
The Tribunal's reference to the country information upon which it relied is said to reflect a less rigorous standard for assessing prospective risk and reflects an approach on the part of the Tribunal of simply relying upon out of date and irrelevant information rather than an inquiring or analytical approach to the question before it. Two things should be noted about this contention. First, it is clear from the Tribunal's reasons that it comprehensively reviewed all of the evidence both in terms of the appellant's written evidence and the evidence of the witnesses at the hearing. Thus, the Tribunal did not simply rely upon 'old decision templates'. Rather, the Tribunal asked itself whether it could be satisfied on all the material that the appellant held a well-founded fear of persecution for a Convention reason should he return to the PRC. Secondly, to the extent that the appellant's contention raises the notion of bias on the part of the Tribunal, there is no basis for such a ground of challenge. There is no evidence of pre-judgment by the Tribunal ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , per Gleeson CJ and Gummow J at [71] and [72]). If the contention is one of apprehended bias rather than actual bias, no fair-minded lay observer examining the reasons of the Tribunal could reasonably apprehend bias ( Re Refugee Review Tribunal &amp; Anor; Ex parte H &amp; Anor [2001] HCA 28 ; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] - [32]; Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644 at 647 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Expectation Pty Ltd v PRD Realty Pty Ltd &amp; Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160).
Case: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129
Outcome: cited
Section 91R(3) requires the appellant to demonstrate to the satisfaction of the Tribunal that his protest activities in Australia were undertaken for reasons other than the purpose of strengthening his claim to be a refugee. The onus of proof to the civil standard is borne by the appellant ( SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 per French, Lander and Besanko JJ at [39]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 per Wilcox J at [26]; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419 per Young J at [89] with whom Gyles J and Stone J agreed).
Case: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536
Outcome: cited
Section 91R(3) requires the appellant to demonstrate to the satisfaction of the Tribunal that his protest activities in Australia were undertaken for reasons other than the purpose of strengthening his claim to be a refugee. The onus of proof to the civil standard is borne by the appellant ( SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 per French, Lander and Besanko JJ at [39]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 per Wilcox J at [26]; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419 per Young J at [89] with whom Gyles J and Stone J agreed).
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419
Outcome: cited
Section 91R(3) requires the appellant to demonstrate to the satisfaction of the Tribunal that his protest activities in Australia were undertaken for reasons other than the purpose of strengthening his claim to be a refugee. The onus of proof to the civil standard is borne by the appellant ( SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 per French, Lander and Besanko JJ at [39]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 per Wilcox J at [26]; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419 per Young J at [89] with whom Gyles J and Stone J agreed).
Case: Perkins v Cuthill (1981) 34 ALR 669
Outcome: referred to
The other formulation of the appropriate test is that an order may be made under s 15(1) of the ADJR Act if the applicant satisfies the Court that it is just in all the circumstances to make such an order. That was the approach suggested by Keely J in Perkins v Cuthill (1981) 34 ALR 669 at 671 and favoured by French J in Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 at 131. 37 In Snow v Deputy Commission of Taxation (supra), French J said that there may be cases where an order under s 15 of the ADJR Act will not be made, even though the test for the granting of an interlocutory injunction is satisfied. His Honour said (at 129): 'In my opinion however there may be cases where, for reasons peculiar to the administration of the Judicial Review Act and the particular legislative scheme on which it is operating, the establishment of a "serious question" to be tried and a balance of convenience in favour of an applicant, ordinarily sufficient to justify the grant of an interlocutory injunction, will be insufficient to warrant the making of an order under s 15. It is unnecessary for present purposes to attempt an exhaustive definition of the boundaries within which the powers conferred by the two sections may operate.' Allowing for that possibility, French J said that it would be preferable to adopt the test formulated by Keely J in Perkins v Cuthill (supra). 38 In many cases, including the present, the application of the test for an interlocutory injunction is the proper test to be applied on an application under s 15(1). Both parties to this application argued the application on the basis that the two requirements for an interlocutory injunction were both necessary and sufficient and I will proceed on that same basis. 39 I turn to consider whether there is a serious question to be tried.
Case: Faingold v Zammit (1984) 1 FCR 87
Outcome: referred to
In Faingold v Zammit (1984) 1 FCR 87 the Full Court of this Court considered the two formulations and said that, in practical terms, there may be very little difference between them. It held that the trial judge in that case had not erred in applying the test appropriate on the application for an interlocutory injunction.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: referred to
To successfully challenge the Registrar's decision, the applicants must make out one of the above grounds in the context of a power the exercise of which is conditioned on the Registrar being satisfied of one of the grounds in s 71(2) of the Act. The question of the limits that this fact places on the scope of a challenge to a decision has been considered in a number of authorities, but it is unnecessary to pause on this point on this application: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110; Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602 per Gaudron and Gummow JJ at 628-629.
Case: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602
Outcome: referred to
To successfully challenge the Registrar's decision, the applicants must make out one of the above grounds in the context of a power the exercise of which is conditioned on the Registrar being satisfied of one of the grounds in s 71(2) of the Act. The question of the limits that this fact places on the scope of a challenge to a decision has been considered in a number of authorities, but it is unnecessary to pause on this point on this application: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110; Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602 per Gaudron and Gummow JJ at 628-629.
Case: Jameson v Guri Wa Ngundagar Aboriginal Corporation [2001] FCA 1104
Outcome: referred to
The Registrar authorised the preparation of the examination report pursuant to s 60. The examiner spoke to certain persons for the purposes of preparing the examination report. The applicants contend that there were persons the examiner should have spoken to, to whom he did not speak. The notice to show cause is based on the findings of the examiner, as set out in his report. As I have said, it seems that the delegate of the Registrar had a copy of the examination report before preparing the notice to show cause, but the examination report was marked 'Draft'. It was not until some time after the service of the notice to show cause that the delegate was told the examination report marked 'Draft' was in fact the final report. There is evidence before me that the delegate was told this some time in late February 2006. The conclusions of the delegate for the purposes of his decision to appoint an administrator were based on the findings of the examiner. The applicants asked for a copy of the examination report before responding to the notice to show cause, but it was not provided. I doubt that the failure to provide the examination report amounts to a breach of the rules of natural justice: see Jameson v Guri Wa Ngundagar Aboriginal Corporation [2001] FCA 1104. The applicants pointed to the fact that the Registrar did not raise any further concerns that she had despite their invitation by letter dated 5 April 2006 to do so. 47 It is not clear to me that there is a serious question to be tried. Had the fate of this application turned on that issue, I would have been disposed to allow the applicants to make further submissions on the issue. Although they have already had an adequate opportunity to do so, the decision is an important one from the applicants' point of view. As it is, I have reached the conclusion that the balance of convenience clearly favours the refusal of the application and it is unnecessary to pursue the issue of whether there is a serious question to be tried any further. 48 I turn now to consider the balance of convenience.
Case: Storey &amp; Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Outcome: followed
The parties said that this amendment was by consent provided that I considered it should be made under the slip rule (and see O 35 r 7(3)). The Court has an implied or inherent power to correct any clerical mistake or error in a judgment or order if it were the result of an accidental slip or omission: Storey &amp; Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 449E per McHugh JA. He said that the power extended to permit a proposed variation of an order which related to a matter that was in issue in the proceedings or something which was incidental to such a matter if the need for such a variation is the result of an accidental omission or mistake ( Storey &amp; Keers 9 NSWLR at 452F-G; see too Australian Fisheries Management Authority v PW Adams Pty Ltd (No 2) (1996) 66 FCR 349). 6 In addition to the power under the slip rule and O 35 r 7(3), under O 35 r 7(2)(e) the Court has power to vary or set aside an order after entry where it does not reflect the intention of the Court. 7 I intended that my orders restore BGR and its group to the position they should have been in had the oppressive conduct of Triad and Cordato Partners Services in causing the payment of their costs not occurred. I overlooked the plaintiffs' submissions that I should frame the relief more generally than just affecting BGR.
Case: Federal Commissioner of Taxation v Consolidated Press Holdings Ltd (2001) 207 CLR 235
Outcome: cited
J concluded that s 177C(1)(b) should be given the wider interpretation that he discussed otherwise the words, "or might reasonably be expected not to have been allowable", would seem to have no role to play. Sackville J noted that the wider view seems to be implicit in the approach adopted in FCT v Peabody ; Federal Commissioner of Taxation v Consolidated Press Holdings Ltd (2001) 207 CLR 235 at 261-262 and Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404. In FCT v Spotless , the High Court in considering the obtaining of a tax benefit for the purposes of s 177C(1)(a), considered that the section identified an amount not being included in the assessable income of the taxpayer "more generally" than the taxpayer had contended for on the narrow basis.
Case: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404
Outcome: cited
J concluded that s 177C(1)(b) should be given the wider interpretation that he discussed otherwise the words, "or might reasonably be expected not to have been allowable", would seem to have no role to play. Sackville J noted that the wider view seems to be implicit in the approach adopted in FCT v Peabody ; Federal Commissioner of Taxation v Consolidated Press Holdings Ltd (2001) 207 CLR 235 at 261-262 and Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404. In FCT v Spotless , the High Court in considering the obtaining of a tax benefit for the purposes of s 177C(1)(a), considered that the section identified an amount not being included in the assessable income of the taxpayer "more generally" than the taxpayer had contended for on the narrow basis. The first step is to isolate with clarity the particular activity that would or might reasonably be expected to have occurred. In undertaking that step it is relevant to have regard to the evidence of the taxpayer as to the steps it says it would have undertaken or would have been likely to undertake in the absence of the scheme: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at pp 423 and 424 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. That subjective evidence of the individuals informing the guiding mind of the taxpayer is, of course, not in any sense determinative of the alternate postulate. However, that evidence, against the background of all the evidence, might assist in framing the nature of the activity the taxpayer would have undertaken or might reasonably be expected to have undertaken. Ultimately, the hypothesis is a prediction as to future events that would or might reasonably be expected to have been undertaken, and the Court, or the administrative decision-maker, must form its own objective view of that hypothesis and whether, against the background of all the evidence, a sufficiently reliable counterfactual can be identified for it to be regarded as reasonable. The matter is to be remitted to the Tribunal to determine the questions before it by applying the test so as to determine whether there is evidence which supports an hypothesis that the taxpayer would have undertaken or might reasonably be expected to have undertaken a particular activity in lieu of the scheme and whether that activity would or might reasonably be expected to have resulted in an allowable deduction of the same kind as the deduction claimed by the taxpayer under the scheme consistently with the methodology identified in the authorities and in particular, Commissioner of Taxation v Peabody (1994) 181 CLR 359; Commissioner of Taxation v Hart (2004) 217 CLR 216; and Federal Commissioner of Taxation v Lenzo (2008) 167 FCR 255 at 278 [121] to [125] and [128]; Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404.