mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631
Outcome: followed
The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration &amp; Citizenship [2008] FCA 1631 at [47] per McKerracher J.
Case: SZLZM v Minister for Immigration &amp; Citizenship [2008] FCA 1263
Outcome: followed
The appeal should be dismissed on that basis alone. Such a fundamental deficiency in a notice of appeal is not a mere matter of form; no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZLZM v Minister for Immigration &amp; Citizenship [2008] FCA 1263. In Sathiyanathan v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 210 , Finn, Marshall and Goldberg JJ likewise emphasised the appellate role of this Court. Their Honours were there addressing an appeal which did at least allege error on the part of the Federal Magistrate, but they did go on to make the following observations as to attempts to review in this Court the reasons of the Tribunal: [10] We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed [to] her Honour's decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant's submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge's reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons.
Case: Australian Broadcasting Commission v Parish (1980) 43 FLR 129
Outcome: distinguished
Senior counsel for the University submitted that the position in this case was distinguishable from that in Williams in that the privacy and confidentiality regime in Williams was based on statute and the orders of the AAT. However, in this case the information was given by the complainants pursuant to a confidentiality undertaking given by the University, which was of such a nature as would attract the protection of equity. This was, submitted senior counsel, a sufficient basis on which to make a suppression order under s 50 of the Act because the proper administration of justice required the preservation of confidentiality undertakings. Senior counsel also submitted that the case of Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (' Parish' ) was an authority which supported this proposition. 37 Further, I do not accept senior counsel's submissions that Parish is an authority for the proposition that the Court will grant suppression orders pursuant to s 50 of the Act to protect confidential undertakings generally because the making of such orders is necessary to prevent prejudice to the administration of justice. I agree with the analysis of Parish by Weinberg J in Johnston at first instance [2002] FCA 948 at [82] that the reason that a suppression order was made in that case was to prevent the proceeding then before the Court from being rendered nugatory. In this case, whilst the disclosure of the names of the applicant and the two complainants would cause embarrassment, it would not render the proceeding nugatory.
Case: Johnston v Cameron [2002] FCA 948
Outcome: followed
Further, I do not accept senior counsel's submissions that Parish is an authority for the proposition that the Court will grant suppression orders pursuant to s 50 of the Act to protect confidential undertakings generally because the making of such orders is necessary to prevent prejudice to the administration of justice. I agree with the analysis of Parish by Weinberg J in Johnston at first instance [2002] FCA 948 at [82] that the reason that a suppression order was made in that case was to prevent the proceeding then before the Court from being rendered nugatory. In this case, whilst the disclosure of the names of the applicant and the two complainants would cause embarrassment, it would not render the proceeding nugatory.
Case: Seven Network Limited v News Limited (No 9) [2005] FCA 1394
Outcome: applied
I agree, however, with respect, with the observations of Sackville J in Seven Network Limited v News Limited (No 9) [2005] FCA 1394 that in exercising the discretion under O 46 r 6(3) of the Rules, considerable weight will be given to the principle of open justice. Further, a court is more likely to grant access to affidavits which have been admitted into evidence at a hearing than to affidavits which have been filed with the court but have not been admitted into evidence (see French J in Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey No 2 [2006] FCA 407 at [17] ). It will only be in exceptional cases that access will not be granted where an affidavit has been admitted into evidence (see Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [20] ). Nevertheless, each case must be considered in the context of its own circumstances.
Case: Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey No 2 [2006] FCA 407
Outcome: cited
I agree, however, with respect, with the observations of Sackville J in Seven Network Limited v News Limited (No 9) [2005] FCA 1394 that in exercising the discretion under O 46 r 6(3) of the Rules, considerable weight will be given to the principle of open justice. Further, a court is more likely to grant access to affidavits which have been admitted into evidence at a hearing than to affidavits which have been filed with the court but have not been admitted into evidence (see French J in Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey No 2 [2006] FCA 407 at [17] ). It will only be in exceptional cases that access will not be granted where an affidavit has been admitted into evidence (see Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [20] ). Nevertheless, each case must be considered in the context of its own circumstances.
Case: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408
Outcome: cited
I agree, however, with respect, with the observations of Sackville J in Seven Network Limited v News Limited (No 9) [2005] FCA 1394 that in exercising the discretion under O 46 r 6(3) of the Rules, considerable weight will be given to the principle of open justice. Further, a court is more likely to grant access to affidavits which have been admitted into evidence at a hearing than to affidavits which have been filed with the court but have not been admitted into evidence (see French J in Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey No 2 [2006] FCA 407 at [17] ). It will only be in exceptional cases that access will not be granted where an affidavit has been admitted into evidence (see Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [20] ). Nevertheless, each case must be considered in the context of its own circumstances.
Case: Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562
Outcome: referred to
applicant referred to the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 (' Al-Kateb ') a case I will need to refer to again in another context. There is nothing in that case that suggests that the decisions in M38/2002 and NATB are not correct. Applying these factors to the factual reference of 'reasonable practicability' in s 198(6) of the Migration Act I have reached the conclusion that it is not a jurisdictional fact. It is true that two of the factors suggest that it should be characterised as a jurisdictional fact, but the other two factors speak so strongly against it being a jurisdictional fact that the first two factors are clearly outweighed. Weighing in favour of the factual reference being a jurisdictional fact is that there is no reference to the officer's 'opinion', 'belief' or 'satisfaction' in s 198(6) of the Act, although (as Gummow J noted in Al-Kateb at 608 [121]) the use of the word 'reasonably' suggests that there is an element of judgment or assessment in the criterion. Also weighing in favour of the factual reference being a jurisdictional fact is that important interests of the unlawful non-citizen are at stake, although it must be remembered that those interests are at most concerned with the applicant's detention prior to his eventual deportation and the timing of that deportation, rather than any actual right to remain in Australia. On the other hand, the nature of the task may be a difficult and complex one and may involve a wide range of considerations; indeed, it may be impossible to come to any conclusion without a detailed consideration of a great deal of information, much of it of a political or diplomatic character. Whilst a Court may have little difficulty determining the unlawful non-citizen's fitness to travel it would be ill-equipped to consider other matters such as conditions in other countries. Furthermore, circumstances may change very quickly and require constant monitoring. A decision that the factual reference is a jurisdictional fact would produce considerable inconvenience because it would mean that an officer's decision that removal was reasonably practicable would be provisional until upheld by a Court in a context where circumstances may change very quickly. The applicant referred to the decision of Al-Kateb in this context, but in my opinion there is nothing in that case which suggests that the question of reasonable practicability is a jurisdictional fact. It is true that certain Justices of the High Court considered what was encompassed by the phrase 'reasonable practicability'; Gummow J at 608 [121]; Hayne J at 639 [227]; Callinan J at 658-662 [290]-[299] but the Court did not address the question of whether reasonable practicability was a jurisdictional fact. Although his Honour was concerned with different questions to those arising before me, in my respectful opinion the High Court's treatment of the phrase was accurately summarised by French J in WAJZ at [83]-[85].
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: referred to
I have said, the orders sought in paragraphs 1 and 2 of the second respondent's notice of motion are that four paragraphs in the statement of claim be struck out as disclosing no reasonable cause of action (paragraphs 21, 22, 23 and 24) and for summary dismissal of one of the claims for relief (the second injunction). The claim for an order that the interlocutory injunction be discharged (paragraph 3) is said to follow from the making of the first two orders. The test I must apply is well known and it is a demanding one. I should only make the orders sought if I am satisfied that the claim for relief and the allegations which are the subject of challenge cannot possibly succeed. General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91. It is to be assumed that, insofar as it is said that the paragraphs in the statement of claim to which I have referred do not disclose a reasonable cause of action, the allegations of fact made by the applicant can be made out.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
I have said, the orders sought in paragraphs 1 and 2 of the second respondent's notice of motion are that four paragraphs in the statement of claim be struck out as disclosing no reasonable cause of action (paragraphs 21, 22, 23 and 24) and for summary dismissal of one of the claims for relief (the second injunction). The claim for an order that the interlocutory injunction be discharged (paragraph 3) is said to follow from the making of the first two orders. The test I must apply is well known and it is a demanding one. I should only make the orders sought if I am satisfied that the claim for relief and the allegations which are the subject of challenge cannot possibly succeed. General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91. It is to be assumed that, insofar as it is said that the paragraphs in the statement of claim to which I have referred do not disclose a reasonable cause of action, the allegations of fact made by the applicant can be made out.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54
Outcome: referred to
Court noted that s 198(6) imposes a duty, but it is a duty which only arises upon the occurrence of certain events or the satisfaction of certain conditions. The matters in paragraphs (a)-(d) inclusive must occur or arise before the duty arises. Furthermore, the duty is not absolute in the sense that thereafter it only arises as soon as it is reasonably practicable to remove the unlawful non-citizen. The Court noted that in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 the Full Court of this Court said that there was no duty to remove an unlawful non-citizen when removal was not reasonably practicable. The Court in M38/2002 considered the meaning of the words 'reasonably practicable' and noted various dictionary definitions and statements made in the authorities. The Court expressed the view that whether the removal of an unlawful non-citizen is practicable 'seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint' (at 165[65]). The Court expressed the view that the removal of a non-citizen may be practicable in the sense of feasible, but not 'reasonably practicable' as required by s 198(6) of the Act. The Court expressed the view that practicability and reasonableness may, on occasions, operate in opposing senses. The Court identified as matters an officer may taken into account in determining whether it is reasonably practicable to remove an unlawful non-citizen matters such as whether another country will admit the person, whether it can admit the person and the physical condition of a person facing removal (at 166[69]). There is no reason not to include in this list of matters, the mental condition of a person facing removal.
Case: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506
Outcome: referred to
of the issues considered by the Full Court in M38/2002 were considered again by the Full Court in the subsequent decision in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 (' NATB '). The Court qualified the statement of the Full Court in M38/2002 that in the context of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. The Court said that an element of reasonableness was inherent in practicability and the use of the word 'reasonably' may operate to extend the reasonableness notion, 'further along what may be described as "the continuum of reasonableness"' (at 516 [50]). The Court said that it would not attempt a definition of all the circumstances relevant to the concept of what was 'reasonably practicable'. It was impossible to foresee all the circumstances which may arise and the question involved a process of evaluation of the facts of each case. The Court said that physical considerations such as the health of the person to be removed and the availability of an operating airport in the place of destination were not the only relevant considerations. The willingness of a country to allow a person to enter its territory is at least one non-physical factor relevant to reasonable practicability. On the other hand, the limits on the matters relevant to reasonable practicability arise from the words themselves and the relevant considerations are practical considerations in the context of the proposed physical removal of a person from Australia. Subject to the one qualification which I have mentioned, nothing was said by the Full Court in NATB to suggest that the Court's observations and conclusions in M38/2002 were wrong and in particular the conclusion that to remove or to refuse to remove was a privative clause decision. The applicant referred to the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 (' Al-Kateb ') a case I will need to refer to again in another context. There is nothing in that case that suggests that the decisions in M38/2002 and NATB are not correct.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
respondents submit that the relevant allegations in the statement of claim (ie, paragraphs 21, 22 and 23) do not support a conclusion that the removal of the applicant from Australia would constitute a failure to exercise jurisdiction or an excess of jurisdiction within the principles enunciated by the High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. In other words, it is submitted by the respondents that the allegations in the statement of claim do not support the only challenge which may be made to a privative clause decision, namely, a challenge on the ground of jurisdictional error. Accordingly, the proposed removal of the applicant cannot be challenged. The applicant submits that even if the removal of the applicant from Australia is a privative clause decision within s 474 it can be challenged on the ground of error of jurisdictional fact. The respondents submit that if its first two submissions are correct, namely, that the decision to remove the applicant from Australia is a privative clause decision and as the allegations presently stand cannot be challenged, then the only possible federal claim is doomed to fail. The other claims in the proceedings are claims in tort which are not within the jurisdiction of this Court. The respondents submit that there is no room for the operation of the doctrines of associated or accrued jurisdiction.
Case: Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 206 ALR 83
Outcome: referred to
my conclusions to this point would not mean that the whole of the applicant's claim should be struck out. The claim against the first respondent for an injunction in relation to the detention of the applicant would appear to be within the jurisdiction of the Court ( Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 206 ALR 83; s 39B(1) Judiciary Act ) and the claim against the second respondent for damages for breach of a duty of care in relation to the detention of the applicant is arguably within the associated or accrued jurisdiction of the Court. Furthermore, it was not suggested that either of those claims are not arguable. More difficult questions arise in relation to the alleged claim for damages in tort against the second respondent in relation to the proposed removal of the applicant from Australia in light of the terms of s 474(1) of the Migration Act . In addition to those matters, had it not been for the provisions of s 476A of the Migration Act my conclusions to this point would have given rise to a question as to whether the applicant should be given leave to re-plead the allegations in paragraphs 21, 22 and 23 to raise (if he is able to) an arguable case of jurisdictional error of the relevant type. Even if an arguable case of jurisdictional error of the relevant type could be raised in relation to the proposed removal of the applicant from Australia, this Court does not have jurisdiction to consider such a claim by reason of s 476A of the Migration Act .