mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260
Outcome: applied
there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche &amp; Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.
Case: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578
Outcome: cited
manner in which s 424A is to be construed and applied has been discussed in many other decisions of this Court (e.g. SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303 ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , 150 FCR 214 ; SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578) and by the High Court (e.g. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1).
Case: SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303
Outcome: cited
manner in which s 424A is to be construed and applied has been discussed in many other decisions of this Court (e.g. SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303 ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , 150 FCR 214 ; SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578) and by the High Court (e.g. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1). Nor is there considered to be any breach of s 424A by failing to give " particulars as to the derivation of adverse evidence ". It is not at all apparent whether the Appellant was intending to confine this contention to " particulars " as to the derivation of the independent country information or " particulars " as to the evidence relied upon when making the series of adverse findings set forth elsewhere in the Tribunal's reasons for decision. Either way, the contention is without substance. While the source of information is a factor that must be put to an applicant in certain circumstances ( SZLPO , supra ), the facts of this case do not give rise to such an obligation on the part of the Tribunal. The source of the country information has been identified; the adverse findings were findings as to credit and an assessment as to evidence advanced by the now Appellant. Although not referred to in the Notice of Appeal , the Appellant's written submissions finally assert a breach of s 424AA of the 1958 Act. This was not a Ground relied upon before the Federal Magistrate and it should not now be allowed to be pursued on appeal. It is in any event a ground without apparent substance. The fundamental difficulty confronting the Appellant is the simple fact that the Tribunal did not accept the case being advanced. The Tribunal did not accept that the Appellant had any significant political involvement in the Awami League and did not accept that he had been subjected to extortion or attack for reasons of his political opinion. Central to the rejection of his claims was the assessment by the Tribunal that his claims were " vague and unsubstantiated by relevant details ". These were all findings of fact open to the Tribunal and essentially based upon the material being advanced by the now Appellant. The Appellant has not been denied such procedural fairness as is set forth in the 1958 Act. He has been given a fair opportunity to advance his case. Fairness does not require an opportunity to further dissuade the Tribunal from making findings adverse to him. There has been no breach of s 424A.
Case: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 , 174 FCR 415
Outcome: cited
no letter was forwarded to the now Appellant pursuant to s 424A, there has been no denial of any opportunity " to comment on or respond to " (s 424A(1)(c)) the information relied upon by the Tribunal in making its findings. " Clear particulars " of the information to be relied upon had been given to the now Appellant when attending before the Tribunal (s 424A(2A)). Section 424A(2A) relieves the Tribunal of the obligation to give particulars of information to an applicant or to invite him to comment on or respond to information " if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information ...". Sections 424A and 424AA " are intended to be complementary ": SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [2] , [2009] FCAFC 46 ; 174 FCR 415 at 417 per Moore J. See also [2009] FCAFC 46 at [106] , 174 FCR at 436 per Tracey and Foster JJ.
Case: SZMNP v Minister for Immigration and Citizenship [2009] FCA 596
Outcome: cited
SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [38] , Jacobson J referred to there being " some tension in the authorities as to what use, if any, can be made of the Tribunal's written reasons in determining whether s 424A(1)(a) was enlivened ". His Honour accepted that in light of the decision in SZBYR " the question is to be determined in advance of, and independently from, the Tribunal's reasoning ".
Case: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Outcome: cited
and as further correctly concluded by the Federal Magistrate, the independent country information was not in any event information which falls within the ambit of s 424A(1): s 424A(3)(a). Section 424A(3)(a) provides that s 424A does not apply to information " that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member ". Rejected has been a contention that the phrase " just about a class of persons of which the applicant or other person is a member " is another criterion of exemption: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [12] per Lander J (Dowsett and Hely JJ agreeing). The nature of the country information here in issue fell within s 424A(3)(a).
Case: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
Outcome: applied
there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche &amp; Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.
Case: Alterskye v Scott [1948] 1 All ER 469
Outcome: referred to
Insofar as the respondents rely upon Glencore International AG v Selwyn Mines (recs and mgrs apptd) and Others [2005] FCA 801 ; (2005) 223 ALR 238 at [11] per Lindgren J, the Court observes that such decision is authority for the principle that the Court cannot make an order for discovery against a third party. The respondents' submission, however, does not relate to the extent of the Court's power to make an order for preliminary discovery, but rather relates to the TCF's intention to use the documents produced in consequence of such an order for the purpose of commencing a proceeding against a third party. Although Glencore at [11] does not support such a submission, the Court observes that it is settled law that any such use of discovered documents to commence a proceeding against a third party would constitute an abuse of the Court's procedures: see Home Office v Harman [1981] 2 WLR 310; Science Research Council v Nass&eacute; [1978] ICR 777 at 781; Alterskye v Scott [1948] 1 All ER 469.
Case: Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd and Another [2007] FCA 1216 ; (2007) 164 FCR 450
Outcome: distinguished
The respondents claim that they have not breached the alleged duty of care that they may have owed to the TCF and rely upon the decision in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd and Another [2007] FCA 1216 ; (2007) 164 FCR 450. 26 The Court considers that Dartberg is distinguishable on its facts. In Dartberg the party that sought discovery under O 15A r 6 of the Rules identified negligence as its principal cause of action. Accordingly Middleton J was required to consider, inter alia, whether such a claim was sustainable. In considering that question Middleton J was required to determine whether a duty of care may have existed and whether there was any evidence before the Court that such duty had been breached. 27 In the present proceeding the TCF identified its possible causes of action against the respondents as arising under the Fair Trading Act 1987 (NSW) and the Trade Practices Act 1974 (Cth). In determining the sustainability of those foreshadowed actions the Court is not required to consider whether a duty of care may have been owed by the respondents to the TCF or whether such duty had been breached. 28 The TCF has not identified an anticipated claim in negligence against the respondents. Accordingly any findings of the Court as to whether a duty of care may have been owed by the respondents to the TCF and whether such duty was breached would be superfluous to the Court's consideration of the TCF's application under O 15A r 6 of the Rules.
Case: Home Office v Harman [1981] 2 WLR 310
Outcome: referred to
Insofar as the respondents rely upon Glencore International AG v Selwyn Mines (recs and mgrs apptd) and Others [2005] FCA 801 ; (2005) 223 ALR 238 at [11] per Lindgren J, the Court observes that such decision is authority for the principle that the Court cannot make an order for discovery against a third party. The respondents' submission, however, does not relate to the extent of the Court's power to make an order for preliminary discovery, but rather relates to the TCF's intention to use the documents produced in consequence of such an order for the purpose of commencing a proceeding against a third party. Although Glencore at [11] does not support such a submission, the Court observes that it is settled law that any such use of discovered documents to commence a proceeding against a third party would constitute an abuse of the Court's procedures: see Home Office v Harman [1981] 2 WLR 310; Science Research Council v Nass&eacute; [1978] ICR 777 at 781; Alterskye v Scott [1948] 1 All ER 469.
Case: Science Research Council v Nass&eacute; [1978] ICR 777
Outcome: referred to
Insofar as the respondents rely upon Glencore International AG v Selwyn Mines (recs and mgrs apptd) and Others [2005] FCA 801 ; (2005) 223 ALR 238 at [11] per Lindgren J, the Court observes that such decision is authority for the principle that the Court cannot make an order for discovery against a third party. The respondents' submission, however, does not relate to the extent of the Court's power to make an order for preliminary discovery, but rather relates to the TCF's intention to use the documents produced in consequence of such an order for the purpose of commencing a proceeding against a third party. Although Glencore at [11] does not support such a submission, the Court observes that it is settled law that any such use of discovered documents to commence a proceeding against a third party would constitute an abuse of the Court's procedures: see Home Office v Harman [1981] 2 WLR 310; Science Research Council v Nass&eacute; [1978] ICR 777 at 781; Alterskye v Scott [1948] 1 All ER 469.
Case: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95
Outcome: cited
The notion of objective intention in contract was discussed in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 (at [25]): 'Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.' 33 There are two ways of regarding the identification of intention in the contractual context. One is as a process of inference constrained because it excludes from consideration evidence of what the parties say their mental states were. The other is as a process of attribution. The latter is probably the more accurate characterisation. 34 The fictional mental states of corporations are attributed rather than ascertained. A corporation is a fictitious legal person. It exists only in a kind of virtual reality created by the law. In order to allocate rights and liabilities the law treats a corporation as though it has a mind and as though that mind has mental states. So a corporation may have purpose. And although it is an attributed purpose because the corporation is a fictitious person, its purpose may be assessed subjectively or objectively.
Case: News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563
Outcome: cited
Despite the use of "purpose" in s 4D of the Trade Practices Act as an attribute of the provisions defining exclusionary contracts, arrangements or understandings and despite its attribution to corporations, it has been treated as amenable to subjective inquiry. In News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563, Gleeson CJ said (at [18]): 'In a case such as the present, it is the subjective purpose of News and ARL in including the 14-team term, that is to say, the end they had in view, that is to be determined.' Although at the same time: 'The manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose.' McHugh J, quoted with approval from Lord Devlin's observation in Chandler v Director of Public Prosecutions [1962] UKHL 2 ; [1964] AC 763, (at [39]): 'A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the main object which a man wants or hopes to achieve by the contemplated act, or it can be used to designate those objects which he knows will probably be achieved by the act, whether he wants them or not.' His Honour went on (at [40]): 'But in some cases in the case of legislative purpose, for example the tribunal of fact must attribute a purpose to an artificial or notional mind that is deemed responsible for some act or omission. In such contexts, the tribunal of fact deduces the purpose of the artificial or notional person from the background of the act or omission including relevant statements and what was done or not done. Similarly, when legislation refers to the purpose of a provision, it is not absurd to regard the legislature as referring to the purpose in the notional mind of those responsible for the provision. In such cases, the test must inevitably be an objective test.'
Case: Chandler v Director of Public Prosecutions [1962] UKHL 2 ; [1964] AC 763
Outcome: cited
Despite the use of "purpose" in s 4D of the Trade Practices Act as an attribute of the provisions defining exclusionary contracts, arrangements or understandings and despite its attribution to corporations, it has been treated as amenable to subjective inquiry. In News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563, Gleeson CJ said (at [18]): 'In a case such as the present, it is the subjective purpose of News and ARL in including the 14-team term, that is to say, the end they had in view, that is to be determined.' Although at the same time: 'The manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose.' McHugh J, quoted with approval from Lord Devlin's observation in Chandler v Director of Public Prosecutions [1962] UKHL 2 ; [1964] AC 763, (at [39]): 'A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the main object which a man wants or hopes to achieve by the contemplated act, or it can be used to designate those objects which he knows will probably be achieved by the act, whether he wants them or not.' His Honour went on (at [40]): 'But in some cases in the case of legislative purpose, for example the tribunal of fact must attribute a purpose to an artificial or notional mind that is deemed responsible for some act or omission. In such contexts, the tribunal of fact deduces the purpose of the artificial or notional person from the background of the act or omission including relevant statements and what was done or not done. Similarly, when legislation refers to the purpose of a provision, it is not absurd to regard the legislature as referring to the purpose in the notional mind of those responsible for the provision. In such cases, the test must inevitably be an objective test.'
Case: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109
Outcome: cited
On the basis of long-standing authority McHugh J adopted the approach that the relevant purpose was the actual, ie, subjective purpose even though it was a subjective purpose attributable to a corporation. That conclusion was not inconsistent with the proposition that even though it is the subjective mental state of a person that is to be attributed, objective evidence about the likely effect of the person's conduct may be the best evidence. The statements of parties about their purposes will often be treated with reserve: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 at 483.
Case: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460
Outcome: cited
On the basis of long-standing authority McHugh J adopted the approach that the relevant purpose was the actual, ie, subjective purpose even though it was a subjective purpose attributable to a corporation. That conclusion was not inconsistent with the proposition that even though it is the subjective mental state of a person that is to be attributed, objective evidence about the likely effect of the person's conduct may be the best evidence. The statements of parties about their purposes will often be treated with reserve: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 at 483.
Case: Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43; 106 ALR 297
Outcome: cited
Section 46 has a different structure which prohibits a corporation from engaging in conduct "for the purpose of" any one of the specified anti-competitive results and it is not surprising that the inquiry into such purpose is into the subjective purpose, albeit it is the subjective purpose attributable to a corporation: Eastern Express Pty Ltd v General Newspapers Ltd (1992) 35 FCR 43 at 66; 106 ALR 297.