mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commonwealth v Human Rights and Equal Opportunities Commission (1998) 76 FCR 513
Outcome: referred to
Counsel for the committees also cited from a decision of the Full Court of this Court in Commonwealth v Human Rights and Equal Opportunities Commission (1998) 76 FCR 513 at 527D-F where Burchett J, who was a member of the Full Court, observed that a possible outcome of the proceedings in that case would be a re-hearing before the commission. He said: 'How could the matter then proceed to be and be, seen to be, dispassionately determined? The Commission had chosen, without any necessity (for X was capably represented), to descend into the arena and contend on an issue of substance as a partisan. In my opinion, it is very important, if parties are to retain confidence in the integrity of the Commission's decisions, that it refrain from a role which risks bringing its impartiality into question. If I had thought outstanding issues of fact remained to be decided in this case, I would not, in the circumstances, have considered it appropriate to compel the appellant to accept a referral back to the Commissioner. That is the consequence of ignoring Hardiman . In those rare cases where no party can represent one side of an issue which the Commission would wish to put, the course mentioned in Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 130 and in the later decision Australian Conservation Foundation v Forestry Commission (Tas) (1988) 76 LGRA 381; 81 ALR 166 at 383; 168, 386; 171 of joining the Commonwealth, so that it can put an appropriate submission, may be available. That course was not available here, the Commonwealth being already an active party, but it was also unnecessary, since, as I have said, X was capably represented.'
Case: Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495
Outcome: cited
In that regard his Honour referred to the Full Court of this Court's discussion of the effect of the provisions in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 ; (2005) 88 ALD 90 (at [17]-[26]). His Honour also referred to the judgment of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60 (at [42]-[45]), and the Full Court judgment of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 (at [39]-[44]). That judgment in turn accepted and applied the reasoning in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558; Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448; and Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495.
Case: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558
Outcome: cited
In that regard his Honour referred to the Full Court of this Court's discussion of the effect of the provisions in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 ; (2005) 88 ALD 90 (at [17]-[26]). His Honour also referred to the judgment of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60 (at [42]-[45]), and the Full Court judgment of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 (at [39]-[44]). That judgment in turn accepted and applied the reasoning in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558; Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448; and Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495. 33 Counsel for the appellant conceded that, on the basis of the Full Court authorities in Zhou , Yu , Humayun and Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 , I am bound to determine this point against his client. He contended that the above line of authority is "plainly wrong". He said that the appellant seeks an opportunity to make that submission to a Full Court. After the filing of this appeal a judge of the Court in Melbourne with responsibility in relation to migration appeals made a decision that this appeal should be dealt with by a single judge. No contrary view was expressed on behalf of the appellant until this morning. It is not appropriate for me in those circumstances to refer this issue to a Full Court. It is more appropriate for the appellant to seek special leave in the High Court to test the correctness of the above mentioned Full Court judgments. However, the utility of doing so may be questionable given the matters referred to in the preceding paragraph above concerning an alternative basis for the relevant findings of the delegate and the Tribunal.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
In considering whether the Tribunal had applied the correct test in determining whether the appellant had "not complied" with condition 8202 rather than whether he had "breached" the condition, the Federal Magistrate found that there was no difference in meaning that was of any relevant significance. His Honour found that it was the type of distinction that was well covered by the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 24 Having found that no jurisdictional error had been established on any of the contended grounds, His Honour dismissed the appellant's applications with costs. 25 The appellant now appeals the Federal Magistrate's decision. I am empowered to hear that appeal pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). 26 The grounds relied on by the appellant in this appeal are in almost identical terms to those relied upon by him before the Federal Magistrate. The only material difference is that the errors are now said to have been made by both the Federal Magistrate and the Tribunal. 27 The judgments referred to by the Federal Magistrate, and by the Full Court in Zhou , authoritatively deal with the appellant's contention that s 116 is limited by Pt 2 , Div 3, Subdiv GB of the Migration Act , and by s 20 of the ESOS Act.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448
Outcome: cited
In that regard his Honour referred to the Full Court of this Court's discussion of the effect of the provisions in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 ; (2005) 88 ALD 90 (at [17]-[26]). His Honour also referred to the judgment of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60 (at [42]-[45]), and the Full Court judgment of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 (at [39]-[44]). That judgment in turn accepted and applied the reasoning in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558; Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448; and Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495. 33 Counsel for the appellant conceded that, on the basis of the Full Court authorities in Zhou , Yu , Humayun and Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 , I am bound to determine this point against his client. He contended that the above line of authority is "plainly wrong". He said that the appellant seeks an opportunity to make that submission to a Full Court. After the filing of this appeal a judge of the Court in Melbourne with responsibility in relation to migration appeals made a decision that this appeal should be dealt with by a single judge. No contrary view was expressed on behalf of the appellant until this morning. It is not appropriate for me in those circumstances to refer this issue to a Full Court. It is more appropriate for the appellant to seek special leave in the High Court to test the correctness of the above mentioned Full Court judgments. However, the utility of doing so may be questionable given the matters referred to in the preceding paragraph above concerning an alternative basis for the relevant findings of the delegate and the Tribunal.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115
Outcome: applied
In that regard his Honour referred to the Full Court of this Court's discussion of the effect of the provisions in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 ; (2005) 88 ALD 90 (at [17]-[26]). His Honour also referred to the judgment of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60 (at [42]-[45]), and the Full Court judgment of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 (at [39]-[44]). That judgment in turn accepted and applied the reasoning in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558; Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448; and Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495.
Case: Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 ; (2005) 88 ALD 90
Outcome: referred to
In that regard his Honour referred to the Full Court of this Court's discussion of the effect of the provisions in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 ; (2005) 88 ALD 90 (at [17]-[26]). His Honour also referred to the judgment of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60 (at [42]-[45]), and the Full Court judgment of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 (at [39]-[44]). That judgment in turn accepted and applied the reasoning in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558; Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448; and Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495.
Case: Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238
Outcome: referred to
Counsel for the appellant conceded that, on the basis of the Full Court authorities in Zhou , Yu , Humayun and Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 , I am bound to determine this point against his client. He contended that the above line of authority is "plainly wrong". He said that the appellant seeks an opportunity to make that submission to a Full Court. After the filing of this appeal a judge of the Court in Melbourne with responsibility in relation to migration appeals made a decision that this appeal should be dealt with by a single judge. No contrary view was expressed on behalf of the appellant until this morning. It is not appropriate for me in those circumstances to refer this issue to a Full Court. It is more appropriate for the appellant to seek special leave in the High Court to test the correctness of the above mentioned Full Court judgments. However, the utility of doing so may be questionable given the matters referred to in the preceding paragraph above concerning an alternative basis for the relevant findings of the delegate and the Tribunal.
Case: Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841
Outcome: referred to
The Federal Magistrate observed that the appellant sought review of the Tribunal's decision on the following grounds: &#8226; that s 20 of the ESOS Act and Subdiv GB of Div 3, of Pt 2 of the Migration Act limit the operation of s 116 of the Migration Act ; &#8226; that the notice sent to the appellant purportedly under s 20 of the ESOS Act was invalid on the grounds set out in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 , so that there was no power in the Tribunal to cancel the visa, or alternatively, it was not open to it to be satisfied that the appellant had not complied with condition 8202 as the sending of a valid notice was a condition of non-compliance; and &#8226; that the Tribunal erred by considering whether the appellant had breached condition 8202 rather than inquiring whether or not he had complied with that condition. 19 The Federal Magistrate reviewed the relevant legislation and found that the combined effect of s 116(3) and reg 2.43(2) was to remove any discretion and make visa cancellation mandatory in the case of a breach of any of the conditions referred to in reg 2.43(2).
Case: Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60
Outcome: cited
In that regard his Honour referred to the Full Court of this Court's discussion of the effect of the provisions in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 ; (2005) 88 ALD 90 (at [17]-[26]). His Honour also referred to the judgment of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60 (at [42]-[45]), and the Full Court judgment of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 (at [39]-[44]). That judgment in turn accepted and applied the reasoning in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558; Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; (2004) 141 FCR 448; and Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: referred to
The first respondent submitted, and I accept, that the Federal Magistrate's decision of 17 October 2006 was an interlocutory decision: compare Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 440 per Taylor J. Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave to appeal before he can proceed with his appeal.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: referred to
Whether or not leave to appeal should be granted or refused depends on two matters. They are: (1) whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. For present purposes, I assume that this second question would be answered in the applicant's favour. Thus, this application turns on the question, whether the decision of the Federal Magistrate is attended by doubt that warrants reconsideration on appeal. 8 In an affidavit filed in support of this application, the applicant alleges that the Federal Magistrate (1) dismissed the proceeding without giving reasonable grounds; (2) breached the rules of natural justice and procedural fairness; and (3) failed to identify the errors made by the Tribunal. A draft notice of appeal alleges that the decision was an improper exercise of the power conferred by the enactment pursuant to which it was made. 9 As to (1) above, the Federal Magistrate clearly stated the reasons for his decision that the application for judicial review did not raise an arguable case. These reasons were sufficient for the case. As to (2), the applicant has given no particulars of this allegation and there is no evidence or other material before me that might support such an allegation. As to (3), the only question for his Honour was whether the applicant had raised an arguable case for the relief claimed. There is no error in his Honour's findings that he had not done so. The applicant's allegation, in his draft notice of appeal, that the decision was an improper exercise of power is unparticularised. There is nothing shown that might support this allegation. 10 In oral submissions today, the applicant stated that the situation in Bangladesh was not favourable. He referred to the fact that national leaders had been arrested and to his claim to be a leader in his local community. In this way, he addressed what are referred to as the merits of the application for a protection visa. The merits are, however, a matter for the first respondent, his Department and the Tribunal. This Court cannot enquire into or determine them. If the applicant wishes to maintain his entitlement to a protection visa in view of the present situation in Bangladesh, then he should apply to the first respondent's Department. 11 The decision of the Federal Magistrate is not attended by sufficient doubt to warrant reconsideration. The application for leave to appeal must therefore be refused.
Case: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: cited
The starting point for consideration of the consolidated proceeding is the NT Act. True though it may be that paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1, it is the provisions of the NT Act which the Court must address in any determination of native title. See Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 ( Ward ), at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 ( Yorta Yorta ), at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 ( Yarmirr ), at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: followed
The starting point for consideration of the consolidated proceeding is the NT Act. True though it may be that paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1, it is the provisions of the NT Act which the Court must address in any determination of native title. See Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 ( Ward ), at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 ( Yorta Yorta ), at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 ( Yarmirr ), at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
Case: Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364
Outcome: referred to
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for. 77 Section 251B provides for two mutually exclusive means for all the persons in the native title claim group to authorise one or more persons to make a native title determination application: Dieri at [57]. 91 In contrast, in Dieri , there was evidence that there had been held traditional tribal meetings, attended by the initiated and elders, at each stage of the proceedings. This was sufficient to indicate that the decisions were made pursuant to traditional laws and customs (at [52]). 92 The issue of authorisation in the current proceedings was not pleaded by the applicants nor by the respondents. It is therefore not surprising that so little evidence was led in relation to this evidence. Indeed, the only evidence led was that of Mr Risk. 93 The issue emerged in essence during final submissions. It was thoroughly canvassed in the Territory's written submissions. There was no attempt by counsel for the first applicants to bring the authorisation within s 251B(b) of the Act, doubtless because Mr Risk's evidence excluded this option. Counsel for the first applicants submitted that the decision-making process, whereby discussion would occur between family groups with the ultimate decision made by the elders, was traditional.
Case: Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495
Outcome: referred to
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.