mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 
Outcome: referred to
as to any issue concerning the grant or withholding of relief in the exercise of discretion, the appellants submitted that the onus rests on the Minister to persuade the court not to grant the relief sought by the appellants, assuming of course the existence of any such entitlement to relief, the appellants referring thereby to relief in their favour that the decision of the Tribunal be quashed, and that the Tribunal thereafter proceed to review the Minister's refusal of the protection visa according to law. The appellants cited in that context Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [151] per Kirby J, where the majority decision of the High Court inclusive of his Honour was to the effect that the Minister's delegate had failed to accord natural justice to an applicant for migration relief. The appellants' submissions continued that '[w]hilst the Federal Magistrate did seek an explanation from the appellant, his approach was erroneous [and] did not demonstrate an onus on the [Minister], [and] further the answers of the appellant[s] made reference to some fault in an authority yet given his lack of advice on the point it is not clear under what apprehension as to the purpose of the questioning the appellant was under'. The appellants' submissions continued further to the effect that '[a] broad common sense approach is appropriate when the conduct of a party seeking review is impugned for the purpose of establishing that there are discretionary reasons why the relief should not be granted', and further that '[t]he applicant is entitled to take advantage of particular circumstances as they appear to him at the time without losing the right to have an unlawful decision set aside', the appellants citing inter alia thereby Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 561 per Sheppard J. The appellants yet further contended that 'the weight that can be placed upon the explanation is diminishable and affects the required confidence of the Court in refusing relief'. To the extent that those submissions were not somewhat tautological or at least confusing, I am unable to distil any force therein, and have only recorded the submissions by way of deference to counsel.
Case: Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 
Outcome: cited
as to any issue concerning the grant or withholding of relief in the exercise of discretion, the appellants submitted that the onus rests on the Minister to persuade the court not to grant the relief sought by the appellants, assuming of course the existence of any such entitlement to relief, the appellants referring thereby to relief in their favour that the decision of the Tribunal be quashed, and that the Tribunal thereafter proceed to review the Minister's refusal of the protection visa according to law. The appellants cited in that context Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [151] per Kirby J, where the majority decision of the High Court inclusive of his Honour was to the effect that the Minister's delegate had failed to accord natural justice to an applicant for migration relief. The appellants' submissions continued that '[w]hilst the Federal Magistrate did seek an explanation from the appellant, his approach was erroneous [and] did not demonstrate an onus on the [Minister], [and] further the answers of the appellant[s] made reference to some fault in an authority yet given his lack of advice on the point it is not clear under what apprehension as to the purpose of the questioning the appellant was under'. The appellants' submissions continued further to the effect that '[a] broad common sense approach is appropriate when the conduct of a party seeking review is impugned for the purpose of establishing that there are discretionary reasons why the relief should not be granted', and further that '[t]he applicant is entitled to take advantage of particular circumstances as they appear to him at the time without losing the right to have an unlawful decision set aside', the appellants citing inter alia thereby Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 561 per Sheppard J. The appellants yet further contended that 'the weight that can be placed upon the explanation is diminishable and affects the required confidence of the Court in refusing relief'. To the extent that those submissions were not somewhat tautological or at least confusing, I am unable to distil any force therein, and have only recorded the submissions by way of deference to counsel.
Case: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109
Outcome: applied
making observations upon and responses otherwise to the numerous evidentiary and forensic issues arising, I have borne in mind the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , and later approved in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [95] by Allsop J (Heerey J agreeing), to the effect that the information of which particulars must be provided to the appellant by the Tribunal, in accordance with s 424A , does not include the subjective appraisal or thought process of the Tribunal. I have also borne in mind that the subsection extends not just to the reason but also to a part of the reason .
Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: applied
making observations upon and responses otherwise to the numerous evidentiary and forensic issues arising, I have borne in mind the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , and later approved in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [95] by Allsop J (Heerey J agreeing), to the effect that the information of which particulars must be provided to the appellant by the Tribunal, in accordance with s 424A , does not include the subjective appraisal or thought process of the Tribunal. I have also borne in mind that the subsection extends not just to the reason but also to a part of the reason .
Case: R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565
Outcome: cited
am of the opinion that it was open reasonably to Nicholls FM to have dismissed the appellants' application for review of the Tribunal decision below at least upon the basis, objectively found by his Honour, as to unwarrantable delay, particularly in the light of no reasonable nor realistic endeavour on the appellants' part to establish any justifiable basis for that evident delay. The circumstances reviewed by his Honour and earlier summarised in [9]-[10] above operate to adequately support that finding of his Honour. Apart from the objective circumstances relied upon by his Honour in exemplification of unwarrantable delay, being circumstances mainly of the adult male appellant which are to be correspondingly attributable in principle to his wife and child appellants in the circumstances of the case, there was present the factor, as the Tribunal additionally mentioned and his Honour duly accepted, of his extent of familiarity with the Tribunal process gained in the context of his prior invocation of that process four years earlier, and of his prior unsuccessful application for review of that process by the Federal Court back in 1999. Although it is evident that the adult male appellant was the dominant litigant, his wife and child must bear the consequences of his role in the curial applications and appeals which have been undertaken by each of them as applicants/appellants. As the Minister rightly submitted, a refusal of relief on discretionary grounds, in particular as to delay, may occur at the instance of the decision-maker in a context of administrative review (or indeed subsequent appeal), with or without the need for the Court to determine whether or not there may have been independently established jurisdictional error in relation to the relevant decision-making of the Tribunal and Federal Magistrate that has occurred. I am unable to distil any prevailing facts or circumstance which have operated to subvert the implications and consequences of that delay. It is established by authority, which need not be cited, that a discretionary ground for withholding prerogative relief includes that of delay in the seeking of that and any associated relief. One example cited was R v Australian Broadcasting Tribunal ex parte Fowler (1980) 31 ALR 565 at 570 (Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ).
Case: Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 
Outcome: considered
The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. This principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. This was made clear in Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40-41: "The rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign's own territory. The statement of Fuller C.J. in Underhill v Hernandez [(1897) 168 U.S. 250, at 252] that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory" has been repeated with approval in the House of Lords ( Buttes Gas v Hammer [[1982] A.C. 888, at 933]) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino [(1964) 376 U.S. 398, at 416]. So, in Oetjen v Central Leather Co . [(1918) 246 U.S. 297, at 304] the Supreme Court said: "To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'." As Lord Wilberforce observed in Buttes Gas v Hammer [[1982] A.C., at 931-932], in the context of considering the United States decisions, the principle is one of "judicial restraint or abstention" and is "inherent in the very nature of the judicial process". See also Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 559 (Mason CJ, Deane, Dawson and Gaudron JJ); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [27] [30] (North J) and Gamogab v Akiba (2007) 159 FCR 578 at [32] (Kiefel J).
Case: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 
Outcome: cited
Thirdly, it could not have been expected by Parliament that the Attorney-General personally would exercise each of the powers reposed in the Attorney-General under the Extradition Act in each and every case where extradition is sought from Australia or to Australia: see Lord Greene MR in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563.
Case: Foster v Attorney-General (1998) 158 ALR 394
Outcome: considered
Thirdly, the history of s 19A(1) of the AI Act does not support the Applicant's contention. Section 19A(1) of the AI Act , in its current form, was enacted following the decision of Spender J in Foster v Attorney-General (1998) 158 ALR 394. That case concerned s 19 of the AI Act which, at that time, read: "Where in an Act any Minister is referred to, such reference shall unless the contrary intention appears, be deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister." Foster sought to challenge a warrant for his surrender which had been issued by the Justice Minister under s 23 of the Extradition Act on the ground, inter alia, that the warrant was a nullity because the discretion in s 22(2) of the Extradition Act could only be lawfully exercised by the Attorney-General and not the Justice Minister. 36 Spender J held that s 22(2) of the Extradition Act required the surrender of a person be determined by the Attorney-General or, by application of s 19 of the AI Act , by a Minister or member of the Executive Council validly authorized to act for the time being on behalf of the Attorney-General. At a practical level, Spender J held that s 19 of the AI Act was an interpretation section which was confined in its operation to cases of temporary absence, for example when a Minister was on holiday or was sick, and that the authorisation for another Minister to perform had to be by the Prime Minister or Cabinet rather than by the authorising Minister: Foster v Attorney-General (1998) 158 ALR 394 at 408.
Case: Gamogab v Akiba (2007) 159 FCR 578 
Outcome: cited
The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. This principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. This was made clear in Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40-41: "The rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign's own territory. The statement of Fuller C.J. in Underhill v Hernandez [(1897) 168 U.S. 250, at 252] that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory" has been repeated with approval in the House of Lords ( Buttes Gas v Hammer [[1982] A.C. 888, at 933]) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino [(1964) 376 U.S. 398, at 416]. So, in Oetjen v Central Leather Co . [(1918) 246 U.S. 297, at 304] the Supreme Court said: "To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'." As Lord Wilberforce observed in Buttes Gas v Hammer [[1982] A.C., at 931-932], in the context of considering the United States decisions, the principle is one of "judicial restraint or abstention" and is "inherent in the very nature of the judicial process". See also Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 559 (Mason CJ, Deane, Dawson and Gaudron JJ); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [27] [30] (North J) and Gamogab v Akiba (2007) 159 FCR 578 at [32] (Kiefel J).
Case: O'Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1
Outcome: cited
After ss 19 and 19A of the AI Act were amended, the decision of Spender J went on appeal and was overturned: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582. The Full Court dealt with s 19 of the AI Act before it was amended and held that: (1) s 19 of the AI Act was not merely one in aid of interpretation of legislation but had a substantive effect: at [36]; (2) efficient government administration requires that in many circumstances a Minister act through another, and not personally discharge all powers and functions bestowed on the office by statutes: at [37] citing Staughton LJ in R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 at 194 (adopted on appeal in the House of Lords: ([1994] 1 AC 531 at 566) and O'Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 11; (3) the appointment of two Ministers to administer the Department of State of the Attorney-General, and the Administrative Arrangements Order that the Extradition Act be administered by " a Minister of State administering " that Department, is itself a sufficient indication that the Executive Council contemplated that the exercise of powers vested in the Attorney-General by the Act would devolve to the Minister for Justice: at [40]; (4) ss 22(2) and 23 of the Extradition Act do not indicate a contrary intention which excludes the operation of s 19 of the AI Act in respect of the exercise of power vested in the Attorney-General: at [42]; (5) in determining whether a statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: at [42] citing Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86 at 93 and O'Reilly at 11.
Case: R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 
Outcome: cited
The Executive Government is established by Ch 2 of the Constitution . By virtue of s 61 of the Constitution , the executive power of the Commonwealth extends to the " execution and maintenance of [the] Constitution , and of the laws of the Commonwealth. " As Latham CJ said in R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 643 644 cited by Mason J in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 at 498: "The execution and maintenance of the Constitution , particularly when considered in relation to other countries, involves ... the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane."
Case: R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 
Outcome: cited
After ss 19 and 19A of the AI Act were amended, the decision of Spender J went on appeal and was overturned: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582. The Full Court dealt with s 19 of the AI Act before it was amended and held that: (1) s 19 of the AI Act was not merely one in aid of interpretation of legislation but had a substantive effect: at [36]; (2) efficient government administration requires that in many circumstances a Minister act through another, and not personally discharge all powers and functions bestowed on the office by statutes: at [37] citing Staughton LJ in R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 at 194 (adopted on appeal in the House of Lords: ([1994] 1 AC 531 at 566) and O'Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 11; (3) the appointment of two Ministers to administer the Department of State of the Attorney-General, and the Administrative Arrangements Order that the Extradition Act be administered by " a Minister of State administering " that Department, is itself a sufficient indication that the Executive Council contemplated that the exercise of powers vested in the Attorney-General by the Act would devolve to the Minister for Justice: at [40]; (4) ss 22(2) and 23 of the Extradition Act do not indicate a contrary intention which excludes the operation of s 19 of the AI Act in respect of the exercise of power vested in the Attorney-General: at [42]; (5) in determining whether a statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: at [42] citing Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86 at 93 and O'Reilly at 11.
Case: R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8 ; [1994] 1 AC 531
Outcome: cited
After ss 19 and 19A of the AI Act were amended, the decision of Spender J went on appeal and was overturned: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582. The Full Court dealt with s 19 of the AI Act before it was amended and held that: (1) s 19 of the AI Act was not merely one in aid of interpretation of legislation but had a substantive effect: at [36]; (2) efficient government administration requires that in many circumstances a Minister act through another, and not personally discharge all powers and functions bestowed on the office by statutes: at [37] citing Staughton LJ in R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 at 194 (adopted on appeal in the House of Lords: ([1994] 1 AC 531 at 566) and O'Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 11; (3) the appointment of two Ministers to administer the Department of State of the Attorney-General, and the Administrative Arrangements Order that the Extradition Act be administered by " a Minister of State administering " that Department, is itself a sufficient indication that the Executive Council contemplated that the exercise of powers vested in the Attorney-General by the Act would devolve to the Minister for Justice: at [40]; (4) ss 22(2) and 23 of the Extradition Act do not indicate a contrary intention which excludes the operation of s 19 of the AI Act in respect of the exercise of power vested in the Attorney-General: at [42]; (5) in determining whether a statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: at [42] citing Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86 at 93 and O'Reilly at 11.
Case: R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886
Outcome: cited
French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]: "[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General": Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts. " (Emphasis added.) See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] [77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.