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HFM043 v The Republic of Nauru [2018] HCA 37

Kiefel CJ, Gageler, Nettle JJ
Date: 15 Aug 2018 Case Number: M146/2017
Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined appellant not refugee – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Supreme Court of Nauru held Tribunal made error of law – Where Supreme Court of Nauru dismissed appeal – Whether Supreme Court of Nauru erred holding remittal to Tribunal futile.

Words and phrases – "dependant", "derivative status", "futile", "refugee", "Refugee Determination Record", "remit", "taken to have been validly determined".

Refugees Convention Act 2012 (Nr) – ss 3, 5, 6, 31(5).

Refugees Convention (Amendment) Act 2014 (Nr).

Refugees Convention (Derivative Status & Other Measures) (Amendment) Act 2016 (Nr).

Nobarani v Mariconte [2018] HCA 36

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 15 Aug 2018 Case Number: S270/2017
Practice and procedure – Appeals – Denial of procedural fairness – Where appellant unrepresented – Where nature of hearing altered at short notice – Where appellant's applications for adjournments refused – Whether appellant denied procedural fairness at trial – Whether denial of procedural fairness amounted to "substantial wrong or miscarriage" – Whether appellant denied possibility of successful outcome – Whether new trial should be ordered.

Succession law – Wills, probate, and administration – Grant of probate – Where appellant claimed interest in challenging will – Where respondent granted probate of will in solemn form – Whether appellant had interest in challenging will.

Words and phrases – "adjournment", "caveat", "denial of procedural fairness", "possibility of a successful outcome", "probate", "procedural fairness", "substantial wrong or miscarriage".

Supreme Court Act 1970 (NSW) – ss 75A, 101(1)(a).

Supreme Court Rules 1970 (NSW) – Pt 78 rr 42, 43, 44(4), 66, 69, 71.

Uniform Civil Procedure Rules 2005 (NSW) – r 51. 53(1).

Shrestha v Minister for Immigration and Border Protection [2018] HCA 35

Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 15 Aug 2018 Case Number: M141/2017 M142/2017 M143/2017
Migration – Cancellation of visa – Student visa – Where Minister for Immigration and Border Protection empowered to cancel visa if satisfied that any circumstances which permitted grant of visa no longer existed – Where delegate of Minister decided to cancel visa – Review of decision by Migration Review Tribunal – Where each appellant granted visa as "eligible higher degree student" – Where definition of "eligible higher degree student" required that visa applicant who proposed to undertake another course of study before and for purposes of principal course of study be enrolled in that other course of study – Where visa holder was enrolled in another course of study for purposes of principal course of study at time of grant of visa – Where visa holder ceased to be enrolled in that other course of study – Where Tribunal concluded that visa holder no longer "eligible higher degree student" – Where Tribunal concluded that circumstance which permitted grant of visa no longer existed – Whether Tribunal made error of law by considering legal characterisation of circumstance rather than circumstance itself – Whether jurisdictional error.

Words and phrases – "another course of study", "circumstances", "eligible higher degree student", "error of law", "factual circumstances", "jurisdictional error", "principal course of study", "reasonably and on a correct understanding and application of the applicable law", "satisfied".

Migration Act 1958 (Cth) – s 116.

Migration Regulations 1994 (Cth) – Sched 2, cll 573. 111, 573. 223.

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 15 Aug 2018 Case Number: S1/2018
Migration – Partner visa – Criteria prescribed for grant of visa – Where Minister for Immigration and Border Protection must refuse to grant visa if not satisfied that criteria prescribed for grant of visa met – Where delegate of Minister refused to grant visa – Review of decision by Administrative Appeals Tribunal – Where Tribunal not satisfied that visa application made within 28 days or that there were compelling reasons for not applying that criterion – Where Tribunal also not satisfied that visa applicant did not have outstanding debts to the Commonwealth or that appropriate arrangements had been made for payment of debts – Where Tribunal made error of law by assessing whether compelling reasons existed as at time of visa application instead of as at time of Tribunal's decision – Whether error of law in relation to one criterion was jurisdictional error where another criterion was not met.

Words and phrases – "compelling reasons", "discretion to refuse relief", "error of law", "error of law on the face of the record", "fundamental error", "independent basis", "jurisdictional error", "materiality", "non-jurisdictional error", "reasonably and on a correct understanding and application of the applicable law", "residual discretion", "satisfied", "void", "voidable".

Migration Act 1958 (Cth) – s 65.

Migration Regulations 1994 (Cth) – Sched 2, cll 820. 211, 820. 223, Sched 4, public interest criterion 4004.

Re Culleton [2018] HCA 33

Kiefel CJ
Date: 10 Aug 2018 Case Number: C15/2016
Parliamentary elections (Cth) – Senate – Court of Disputed Returns – Application to reopen perfected orders of Court declaring applicant was incapable of being chosen as a Senator – Where applicant alleges Senate was inquorate when Senate resolved to refer applicant to Court of Disputed Returns – Where arguments were available on original reference – Whether preconditions for reopening have been met.

Words and phrases – "reopen".

Parliamentary Privileges Act 1987 (Cth) – s 16(3).

DL v The Queen [2018] HCA 32

Bell, Keane, Nettle, Gordon, Edelman JJ
Date: 8 Aug 2018 Case Number: S309/2017
Criminal law – Appeal against sentence – Where appellant convicted of murder – Where primary judge found it probable that appellant acting under influence of some psychosis at time of offence – Where primary judge not satisfied appellant possessed intention to kill – Where primary judge's discretion miscarried by giving primary significance to standard non-parole period – Where Court of Criminal Appeal excised power to re-sentence – Where prosecutor conceded there was no issue with primary judge's factual findings – Where Court of Criminal Appeal found primary judge's findings open – Where Court of Criminal Appeal rejected primary judge's finding that appellant had suffered temporary psychosis which precluded forming intention to kill – Where Court of Criminal Appeal took into account evidence of appellant's progress since sentence on the "usual basis" as discussed in Betts v The Queen (2016) 258 CLR 420 – Where Court of Criminal Appeal failed to put appellant on notice of inclination not to act on concession made by prosecution – Whether denial of procedural fairness – Whether miscarriage of justice.

Words and phrases – "circumstance of aggravation", "concession", "miscarriage of justice", "new evidence", "objective seriousness", "procedural fairness", "re-sentencing", "unchallenged factual findings", "usual basis".

Criminal Appeal Act 1912 (NSW) – s 6(3).

Federal Commissioner of Taxation v Thomas [2018] HCA 31

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 8 Aug 2018 Case Number: B60/2017 B61/2017 B62/2017 B63/2017
Taxation – Division 207 in Pt 3-6 of Income Tax Assessment Act 1997 (Cth) – Where trustee passed resolutions purporting to distribute franking credits to beneficiaries of trust separately from and in different proportions to income comprising franked distributions – Where directions made by Supreme Court of Queensland pursuant to s 96 of Trusts Act 1973 (Q) concerning the resolutions – Whether directions determined against Commissioner of Taxation the application of Div 207.

Words and phrases – "deemed assessment", "determine conclusively", "directions", "franked distribution", "franking credit", "imputation credit", "income tax return", "judicial advice", "notice of amended assessment", "notionally allocated", "streaming", "tax offset".

Income Tax Assessment Act 1936 (Cth) – ss 95, 97.

Income Tax Assessment Act 1997 (Cth) – Div 207.

Taxation Administration Act 1953 (Cth) – Pt IVC.

Trusts Act 1973 (Q) – s 96.

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 8 Aug 2018 Case Number: S244/2017
Migration – Refugee Review Tribunal – Review of decisions – Where first and second respondents sought review by Refugee Review Tribunal ("Tribunal") of decision of delegate of appellant to refuse applications for protection visas – Where respondents failed to respond to invitations from Tribunal to appear or provide submissions – Where s 426A(1) of Migration Act 1958 (Cth) empowered Tribunal to proceed to make decision on review without taking further action to allow or enable respondents to appear – Where Tribunal made decision to proceed under s 426A(1) – Whether Tribunal's decision to proceed in absence of respondents was legally unreasonable.

Appeal – Rehearing – Where primary judge held decision of Tribunal was legally unreasonable – Where Full Court of Federal Court dismissed appeal from primary judge's decision, holding that appellant was required to demonstrate error in reasoning of primary judge akin to that required in appeals from discretionary judgments – Whether principles stated in House v The King (1936) 55 CLR 499 apply to appeal from decision on judicial review that administrative decision is legally unreasonable.

Words and phrases – "appeal by way of rehearing", "appealable error", "discretionary", "discretionary decision", "discretionary power", "evaluative approach", "evaluative judgment", "evaluative process", "legally unreasonable", "standard of appellate review", "unreasonable".

Migration Act 1958 (Cth) – ss 425, 425A, 426A, 441A, 441C, 476.

The Queen v Falzon [2018] HCA 29

Kiefel CJ, Bell, Keane, Nettle, Gordon JJ
Date: 8 Aug 2018 Case Number: M161/2017
Criminal law – Appeal against conviction – Where cannabis and drug paraphernalia found at four properties including respondent's home – Where $120,800 in cash found at respondent's home – Where respondent charged with cultivation and trafficking of cannabis found at three properties not including his home – Where Crown alleged offences of trafficking constituted of possession of cannabis on particular date for purpose of sale – Where evidence of cash led as evidence respondent engaged in business of cultivating cannabis for sale – Whether evidence of cash wrongly admitted at trial.

Words and phrases – "accoutrements of drug trafficking", "business of trafficking", "cash", "drug trafficking", "indicia of trafficking", "intermediate appellate court", "possession", "profit making enterprise", "propensity", "purpose of sale", "tendency".

Drugs – Poisons and Controlled Substances Act 1981 (Vic), ss 4, 5, 70(1), 71AC, 72A.

Evidence Act 2008 (Vic) – ss 55, 56, 136, 137.

Jury Directions Act 2015 (Vic) – ss 12, 15, 16.

Lane v The Queen [2018] HCA 28

Kiefel CJ, Bell, Gageler, Keane, Edelman JJ
Date: 20 Jun 2018 Case Number: S308/2017
Criminal law – Appeal against conviction – Application of proviso – Where appellant convicted of manslaughter – Where either of two acts of appellant may have caused death of deceased – Where trial judge erred in failing to direct jury as to requirement that it be unanimous as to specific act causing death – Whether "no substantial miscarriage of justice has actually occurred" – Whether absence of unanimity direction precluded application of proviso.

Words and phrases – "fundamental defect", "nature and effect of the error", "presuppositions of the trial", "proviso", "reasonable doubt", "substantial miscarriage of justice", "unanimity direction", "unanimous".

Criminal Appeal Act 1912 (NSW) – s 6(1).

Minogue v Victoria [2018] HCA 27

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 20 Jun 2018 Case Number: M2/2017
Criminal law – Parole – Where s 74AAA of Corrections Act 1986 (Vic) imposes conditions for making parole order for prisoner convicted and sentenced to imprisonment for murder of person who prisoner knew was, or was reckless as to whether person was, police officer – Where s 127A inserted into Corrections Act 1986 (Vic) stating s 74AAA applies regardless of whether prior to commencement of s 74AAA prisoner became eligible for parole, prisoner took steps to ask Adult Parole Board of Victoria ("Board") to grant parole, or Board began consideration of whether prisoner should be granted parole – Where prior to commencement of s 74AAA and s 127A plaintiff became eligible for parole and applied for parole and Board began consideration of whether plaintiff should be granted parole – Whether s 74AAA and s 127A apply to plaintiff.

Words and phrases – "non-parole period", "parole", "recklessness", "sentencing", "statutory construction".

Charter of Human Rights and Responsibilities Act 2006 (Vic) – ss 10, 22, 28, 31, 32.

Corrections Act 1986 (Vic) – ss 74AAA, 127A.

Crimes Act 1958 (Vic) – s 3.

DL v The Queen [2018] HCA 26

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 20 Jun 2018 Case Number: A38/2017
Criminal law – Trial by judge alone – Adequacy of reasons – Where appellant convicted of "[p]ersistent sexual exploitation of a child" – Where offence comprised of two or more acts of sexual exploitation separated by not less than three days – Where complainant alleged various acts of sexual exploitation over many years – Where alleged inconsistencies and implausibilities in complainant's evidence – Where trial judge regarded complainant as reliable witness as to "core allegations" – Whether trial judge's reasons inadequate because failed to identify two or more acts constituting offence – Whether trial judge's reasons inadequate because failed to explain process of reasoning.

Words and phrases – "adequacy of reasons", "basis for decision", "conflict between evidence", "credibility", "inadequacy of reasons", "inconsistencies in evidence", "process of reasoning", "reasons", "trial by judge alone".

Criminal Law Consolidation Act 1935 (SA) – s 50(1).

Trkulja v Google LLC [2018] HCA 25

Kiefel CJ, Bell, Keane, Nettle, Gordon JJ
Date: 13 Jun 2018 Case Number: M88/2017
Defamation – Publication – Capacity to defame – Where application for summary dismissal of defamation proceeding – Where allegedly defamatory matter includes search results of internet search engine – Where allegedly defamatory matter includes autocomplete predictions of internet search engine – Whether respondent published allegedly defamatory matter – Whether matter capable of conveying allegedly defamatory imputations – Whether proceeding had no real prospect of success.

Words and phrases – "autocomplete", "capacity to defame", "composite publication", "defamation", "defamatory image", "no real prospect of success", "ordinary reasonable person", "publication", "search engine", "search results", "search terms", "summary dismissal", "summary judgment".

Civil Procedure Act 2010 (Vic) – ss 62, 63.

Supreme Court (General Civil Procedure) Rules 2005 (Vic) – rr 7. 01, 8. 09.

CRI028 v The Republic of Nauru [2018] HCA 24

Bell, Gordon, Edelman JJ
Date: 13 Jun 2018 Case Number: M66/2017
Migration – Refugees – Appeal as of right from Supreme Court of Nauru –Where Secretary of Department of Justice and Border Control determined appellant not refugee – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where appellant established well-founded fear of persecution – Where Tribunal found alternative "home area" – Whether Tribunal properly applied internal relocation principle – Whether Tribunal failed to consider family unity – Whether Supreme Court erred in affirming Tribunal's determination.

Words and phrases – "family unity", "home area", "in all the circumstances", "internal relocation principle", "reasonableness of relocation", "relocation".

Appeals Act 1972 (Nr) – s 44.

Nauru (High Court Appeals) Act 1976 (Cth) – s 5, Sched, Art 1.

Refugees Convention Act 2012 (Nr) – ss 3, 4, 5, 6, 22, 31, 34, 43, 44.

Convention relating to the Status of Refugees (1951) as modified by the Protocol relating to the Status of Refugees (1967) – Art 1A(2).

Rozenblit v Vainer [2018] HCA 23

Kiefel CJ, Bell, Keane, Gordon, Edelman JJ
Date: 13 Jun 2018 Case Number: M114/2017
Practice and procedure – Victoria – Stay of proceeding – Where appellant commenced proceeding in Supreme Court of Victoria – Where appellant made applications for leave to file and serve amended statement of claim – Where applications refused with costs taxed immediately – Where costs unpaid because appellant impecunious – Where appellant made further application – Where leave to amend statement of claim granted but proceeding stayed under Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63. 03(3) until interlocutory costs orders paid – Whether primary judge erred in making order to stay proceedings.

Words and phrases – "conduct which falls for condemnation", "costs taxed immediately", "impecunious", "interlocutory costs order", "only practical way to ensure justice between the parties", "stay of proceeding", "strong grounds".

Civil Procedure Act 2010 (Vic) – ss 7, 8, 9, 65C, 65E.

Supreme Court Act 1986 (Vic) – ss 24, 25.

Supreme Court (General Civil Procedure) Rules 2015 (Vic) – rr 63. 03(3), 63. 20. 1.

Amaca Pty Limited v Latz [2018] HCA 22

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 13 Jun 2018 Case Number: A8/2018 A7/2018
Negligence – Personal injury – Damages – Assessment of present value of future loss – Where claimant diagnosed with terminal malignant mesothelioma post-retirement – Where claimant's life expectancy reduced – Where claimant receiving superannuation pension under Superannuation Act 1988 (SA) and age pension under Social Security Act 1991 (Cth) – Whether superannuation pension entitlement which would have been received during remainder of pre-illness life expectancy compensable loss – Whether age pension entitlement which would have been received during remainder of pre-illness life expectancy compensable loss – Whether reversionary pension payable under s 38(1)(a) of Superannuation Act to partner on claimant's death should be deducted from damages award.

Words and phrases – "age pension", "capital asset", "compensable loss", "compensatory principle", "loss of earning capacity", "lost years", "net present value", "offsetting or collateral benefit", "pension", "pre-illness life expectancy", "reversionary pension", "superannuation pension".

Social Security Act 1991 (Cth) – Pt 2. 2.

Superannuation Act 1988 (SA) – Pt 5.

EMP144 v The Republic of Nauru [2018] HCA 21

Keifel CJ, Gageler, Nettle JJ
Date: 16 May 2018 Case Number: M151/2017
Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control of Nauru ("Secretary") determined appellant not refugee under Refugees Convention Act 2012 (Nr) – Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act – Where Refugee Status Review Tribunal ("Tribunal") affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection – Whether Tribunal failed to raise issue of whether appellant could reasonably relocate – Whether Tribunal failed to take into account factors relevant to appellant's ability reasonably to relocate – Whether Tribunal misunderstood country information.

Words and phrases – "complementary protection", "country information", "internal relocation", "reasonable internal relocation", "refugee", "well-founded fear of persecution".

Convention against Torture and Other Cruel – Inhuman or Degrading Treatment or Punishment (1984), Art 3.

International Covenant on Civil and Political Rights (1966) – Arts 6, 7.

Nauru (High Court Appeals) Act 1976 (Cth) – s 5.

Refugees Convention Act 2012 (Nr) – ss 4, 22(b), 34(4), 40(1), 43.

DWN027 v The Republic of Nauru [2018] HCA 20

Kiefel CJ, Gageler, Nettle JJ
Date: 16 May 2018 Case Number: M145/2017
Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control of Nauru ("Secretary") determined appellant not refugee under Refugees Convention Act 2012 (Nr) – Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act – Where Refugee Status Review Tribunal ("Tribunal") affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection – Whether Tribunal failed to take into account factors relevant to appellant's ability reasonably to relocate – Whether Tribunal required under Convention on the Rights of the Child (1989) to give primary consideration to best interests of appellant's child.

Words and phrases – "best interests of children", "best interests of the child", "complementary protection", "internal relocation", "reasonable internal relocation", "reasonable relocation", "refugee", "well-founded fear of persecution".

Convention on the Rights of the Child (1989) – Arts 2, 3(1).

International Covenant on Civil and Political Rights (1966).

Nauru (High Court Appeals) Act 1976 (Cth)
– s 5.

Refugees Convention Act 2012 (Nr) – ss 4, 43.

CRI026 v The Republic of Nauru [2018] HCA 19

Kiefel CJ, Gageler, Nettle JJ
Date: 16 May 2018 Case Number: M131/2017
Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control of Nauru ("Secretary") determined appellant not refugee under Refugees Convention Act 2012 (Nr) – Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act – Where Refugee Status Review Tribunal ("Tribunal") affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin to place where persecutors had little or no influence or power – Where Tribunal's reasons contained typographical error – Where Tribunal issued corrigendum correcting error – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection – Whether typographical error in Tribunal's reasons disclosed error – Whether ability of appellant's family reasonably to relocate relevant to assessing appellant's ability reasonably to relocate – Whether Tribunal erred in failing to consider whether appellant's family able reasonably to relocate in assessing appellant's ability reasonably to relocate – Whether Tribunal's finding that persecutors had little or no influence or power in place of relocation supported by evidence.

Words and phrases – "complementary protection", "corrigendum", "freedom of movement", "internal flight alternative", "internal relocation", "non-refoulement", "reasonable internal relocation", "reasonable relocation", "refugee", "subsidiary protection", "typographical error", "well-founded fear of persecution".

Convention Relating to the Status of Refugees (1951) as modified by the Protocol Relating to the Status of Refugees (1967) – Art 1A(2).

Convention for the Protection of Human Rights and Fundamental Freedoms (1950) – Art 3.

International Covenant on Civil and Political Rights (1966) – Arts 2, 6, 7, 12.

Nauru (High Court Appeals) Act 1976 (Cth) – s 5.

Refugees Convention Act 2012 (Nr) – ss 3, 4, 43.

Collins v The Queen [2018] HCA 18

Kiefel CJ, Bell, Keane, Gordon, Edelman JJ
Date: 9 May 2018 Case Number: B68/2017
Criminal law – Appeal against convictions – Jury direction – Prior inconsistent statement – Where appellant indicted for indecent assault, aggravated indecent assault and rape – Where consent main issue at trial – Where complainant made preliminary complaints to mother and others – Where mother gave evidence at committal hearing – Where mother gave different account at trial – Where trial judge directed jury committal evidence could only be used to assess mother's credibility – Where mother confirmed at trial she had given that evidence at committal and her memory was better at committal – Whether mother actually adopted committal evidence – Whether prior inconsistent statement available to jury to assess complainant's credibility – Whether trial judge misdirected jury.

Criminal law – Appeal against convictions – Application of proviso – Where Court of Appeal found erroneous jury direction – Where prosecution disavowed reliance on proviso – Where Court of Appeal applied proviso without notice and notwithstanding disavowal – Whether Court of Appeal bound to put appellant on notice of possibility of applying proviso.

Words and phrases – "preliminary complaint", "prior inconsistent statement", "proviso", "substantial miscarriage of justice".

Criminal Code (Q) – ss 337, 349, 352, 668E(1A).

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