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© 2009 Jeremy Shum 1
IMMIGRATION & REFUGEE LAW PART 1 1: UNDERSTANDING MIGRATION
State and nation: Definitions-
1. State: A legal and political organization, with the power to require obedience and loyalty from its citizens (barriers to entry)
2. Nation: A community of people whose members are bound together by a sense of solidarity, a common culture and a national consciousness
3. Citizenship: Is the essential link between state and nation
4. Nation-State: The predominant form of political organization. It is important in understanding immigration.
Ways of understanding migration:
One way to look at migration is through the Neo-classical economic theory. There are “push and pull factors”, including:
1. Density of population (into less dense)
2. Wealth and standard of living (into wealthier)
3. Labor opportunities
4. Physical climate
Migration as an investment:
1. Remittances
2. Free movement of people, open borders (as with free movement of goods)
Note the assumptions in neo-classical theory:
1. People have perfect knowledge
2. People have the capacity to move across borders (even if they are open)
3. The competing interests can be weighed sensibly
4. Individual rather than collective decision-making
Other factors which affect migration (not easily captured in economic modeling):
1. Collective decision making
2. Culture
3. Nation building of receiving States
4. Refugee creating events
5. National politics (and resultant migration policies)
6. Particular links between sending and receiving countries
7. The effectiveness of the migration industry
Historic-structural accounts: Disparity of power between states based on their historical relationship and continuing disparity in wealth. Mobilization of cheap labor by receiving States. But, receiving States do not have complete control, for example of guest workers in Germany.
From migration to settlement:
1. Transformation of temporary to permanent migration: After coming to Australia, some people want to bring their families over later, etc
2. Ethnic communities: Change from ethnic communities to ethnic minorities
3. Three approaches to migration:
 Assimilation: You must become like us
 Integration: You can hold on to more cultural practices, but still integrate into community
 Multiculturalism: Allows more individual cultural practices, and formation of cultural communities within state
Understanding resistance to migration:
1. Views on ethnicity: Clifford Geertz, “a primordial attachment which results from being born into a particular religious community, speaking a particular language … and following particular social practices”
2. Views on national identity: Attachment to a nation based on ethnicity; other views of national identity, based on location, being born into a particular territory (regardless of ethnic traits)
Pauline Hanson, Maiden speech in Commonwealth Parliament (Tuesday, September 10, 1996): “Immigration and multiculturalism are issues that this [Howard] government is trying to address, but for far too long ordinary Australians have been kept out of any debate by the major parties. I and most Australians want our immigration policy radically reviewed and that of multiculturalism abolished. I believe we are in danger of being swamped by Asians. Between 1984 and 1995, 40% of all migrants coming into this country were of Asian origin. They have their own culture and religion, form ghettos and do not assimilate. Of course, I will be called racist but, if I can invite whom I want into my home, then I should have the right to have a say in who comes into my country. A truly multicultural country can never be strong or united. The world is full of failed and tragic examples.”
Understanding resistance to migration: Racism is “a process whereby social groups categorize other groups as different or inferior on the basis of phenotypical or cultural markers.” Phenotype means organisms which look alike. As compared with xenophobia, hostility to foreigners, ethnocentrism. 2: AUST IMMIGRATION HISTORY
Pre-federation debates: From 1850‟s, colonies became self-governing and introduced restrictive immigration policies (“white” nation), becoming a debates leading to federation, leading to eventual Immigration Restriction Act 1901 (Cth).
Indentured laborers in Queensland: As it was more frequent Pacific Islanders were taken, Polynesian Laborers Act 1868 (Qld) officially allowed them to come in laborers to come in temporarily. Sourcing indentured labor – Peter Corris, Passage Port and Plantation 1973; kidnapping/blackbirding: “the method most frequently used was for the crew to attract islanders alongside in their canoes and then to hole or upset the canoes by dropping pig-iron or heavy harpoons into them. They were then hauled aboard and imprisoned below decks; those who put up a spirited resistance in the water were shot.” Controls – government agents.
When Pacific Islanders did come in, labor conditions (hours, food and shelter, death rate) were BAD! Sir Samuel Griffith (CJ of High Court) and Conservatives in QLD, pushed to have this to STOP. Pacific Islanders Laborer’s Act 1901 (Cth) stated trade can go on until 1907, but then all laborers must be returned, causing mass deportations in 1907, where 4269 deported (including 1654 exempted, but they couldn‟t work).
Federation: Underpinning immigration policy for the next 70 years, Immigration Restriction Act 1901 (Cth) excluded others, s3: The immigration into the Commonwealth of the persons described in any of the following paragraphs of this section is prohibited, namely: a. Any person who when asked to do so by an official fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer; b. Any persons likely in the opinion of the Minister or of an officer to become a charge upon the public or upon any public or charitable institution; c. Any idiot or insane person; d. Any person suffering from an infectious or contagious disease of a loathsome or dangerous character; e. Any person who has within three years been convicted of an offence… and has been sentenced to imprisonment for one year or longer; f. Any prostitute or person living on the prostitution of others;
Administering the dictation test: The case of Egon Kisch: Facts, Czeck born who lived in Berlin, journalist; communist and fierce critic of Nazi regime. In 1930‟s, expelled from Germany after the Reichstag fire, which was used by the Nazis as an excuse to crush communist opposition. Kisch attempted to join a group in London which ran a counter trial to the Reichstag fire trial in Germany. Was refused entry to the UK; Invited to attend an anti-war conference in Australia. Conservative (anti-Communist) government wanted to refuse him entry. Kisch bought an application for
„habeas corpus‟ on the grounds he was being imprisoned upon the SS Straithaird by Captain Carter; Evatt J ordered his release (R v Carter: ex parte Kisch (1934)). Meanwhile Kisch had jumped from the ship and broken his leg; carried to government office and subjected to a dictation test in Scottish Gaelic; challenged the validity of the test (R v Wilson; Ex Parte Kisch (1934)).
S3 states dictation test may be given „in any European language‟; question for the Court was whether „Scottish Gaelic‟ fitted this description. Dixon J held, Scottish-Gaelic NOT a European language.
Abolishing the White Australia policy:
 1966: Statements about eligibility of non-whites to immigrate. Focus on „suitability‟ rather than race.
 1973: Whitlam Labor Government introduced new law and policy – all migrants, of whatever origin, eligible to obtain citizenship after three years of permanent residence; issued policy instructions to overseas posts to totally disregard race as a factor in the selection of migrants; ratify all international agreements relating to immigration and race.
Immigration policy in the last 40 years: Non-discriminatory on grounds of race.
 Rising proportion of skilled migrants over family reunion within permanent migration program
 Rising proportion of temporary over permanent migration visas
 International Student numbers increase dramatically from the early 1990‟s; in 2000, enabled overseas students who have studied in Australia to apply onshore to migrate permanently
 Humanitarian program: Refugees from all over the world, responding to international crisis; beginning of phenomenon of people arriving by boat:
o From Indo-China and Vietnam in the 1970s
o From Cambodia and China in the late 1980s and 1990s
o From Afghanistan and Iran in late 1990s and 2000s
o 1992 introduced law of mandatory detention (by Labor Government) for people arriving on-shore and seeking asylum
o Went to a new level during the Tampa incident and new policy initiatives (including increasing controversy, particularly regarding children). PART 2 3: THE SYSTEM FOR REGULATING THE MOVEMENT OF ALIENS INTO AUSTRALIA
Who determines who is Australian: Constitution s51, Parliament shall have power to make laws with respect to:
 (xix) Naturalization and aliens
 (xxvii) Immigration and emigration
Definitions:
 Immigration: Power over conditions of entry of people who are „immigrants‟
 Emigration: Power over exit, of immigrants and nationals
 Naturalization: Power to confer citizenship/nationality
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 Aliens: Power to make laws with respect to aliens, extent of power depends on the interpretation of „alien‟, in legislation equated with non-citizen
Early cases:
 Robtelmes v Brenan (1906): Facts are, challenge of Pacific Islander in deportation out of the country. What the case stands for is, Griffith CJ said, once you are an alien, Commonwealth has power to determine conditions of your entry; conditions of your time within Australia; conditions of when you leave Australia.
 Potter v Minihan (1908): Facts, young man born in Australia to English mother (Australian) and Chinese father, with issues such as “is there a legal marriage?” He was naturally born in Australia, lived in Australia until 5; father took him back to China for next 26 years; when he came back to Australia, authorities tried to put dictation test forward. Minihan argued back, because he was citizen. Court divided; Griffith CJ and Barton J emphasized he was born in Australia and he hadn‟t enunciated his connection with Australia; Higgins J and Isaacs JJ emphasized the question of domicile (26 years had been in China), where there must be shown an “unbroken intention to return to Australia”. Minihan eventually won.
Ways of acquiring citizenship:
1. Automatic acquisition of Australian citizenship: Australian Citizenship Act 2007, ss11-15. S11A The most common way you become an Australian citizen under this Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of your birth. There are some other, less common, ways of becoming an Australian citizen under this Division. These cover:  Citizenship by being born in Australia and by being ordinarily resident in Australia for the next 10 years: see s12; and  Citizenship by adoption: see s13; and  Citizenship for abandoned children: see s14; and  Citizenship by incorporation of territory: see s15.
2. Acquisition of Australian citizenship by conferral: Australian Citizenship Act 2007, s21: (1) A person may make an application to the Minister to become an Australian citizen; General eligibility (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person: a) Is aged 18 or over at the time the person made the application; and b) Is a permanent resident… c) Satisfies the residence requirement (see s22), or has completed relevant defense service (see s23), at the time the person made the application; and d) Understands the nature of an application under subsection (1); and e) Possesses a basic knowledge of the English language; and f) Has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and g) Is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and h) Is of good character at the time of the Minister’s decision on the application.
S21(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has, before making the application: (a) sat a test approved in a determination under s23A; and (b) successfully completed that test (worked out in accordance with that determination).
Citizenship test: Australian Citizenship Act 2007, s23A: (1) The Minister must, be written determination, approve a test for the purposes of subsection 21(2A) (about general eligibility for citizenship, note the test must be related to the eligibility criteria referred to in paragraphs 21(2)(d), (e) and (f); (2) a determination under subsection (1) must specify what amounts to successful completion of the test.
Citizens and non-aliens: Is there a status of „non-alien‟ with respect to which Parliament cannot make laws? Is a person born in Australia a „non-alien‟?
 Singh v Commonwealth (2004), facts are, Singh was Indian girl born in Australia after parents had come in 1997 seeking a protection refugee visa, she was born in detention, but when the application for humanitarian visa had failed, the Australian Government wanted to deport the Singh‟s back to India, including Tania Singh. An action was brought upon her, that she wasn‟t an alien. However, according to the legislation, she hadn‟t acquired citizenship, because she didn‟t have parents born in Australia. Her argument is that that was unconstitutional.); is a person who was not born in Australia but has lived in Australia for 30 years since 4 weeks old a „non-alien‟?
Meaning of „alien‟: Limits determined by its meaning at Federation. Gleeson CJ; Gummow and Hayne JJ and Heydon J, „alien‟ did not have a fixed meaning at the time of federation, pointed to developments in Nationality law in the UK in the late 19th century, influence of both ius soli and ius sanguinis (so Parliament can make it; but they did say it must have limits).
McHugh J (dissent): DID have fixed meaning, and Parliament is stuck with meaning regardless of inconvenience in present. He looked at
o Convention debates: framers of Constitution expressly considered adding a citizenship power and rejected it.
o History of the concept of ‘alien’
o Cases reveal that the core concept is allegiance to the Crown: That Americans had broken their allegiance with the (British) Crown.
o A subject automatically owes allegiance upon birth within the dominions of the Crown. Sir William Blackstone, ‘the children of aliens, born here in England, are, generally speaking, natural-born subjects’.
 MIMIA v Nystrom (2006): Facts are, Mr. Nystrom‟s parents were Swedish, born in Sweden, came to Australia 28 days old. He lived in Australia his whole life; had little connection with Sweden, committed a number of offences. In 2004, his visa was cancelled on the basis he didn‟t pass the “Character Test” (power of a minister to Deport). Court accepted Mr. Nystrom was an alien; thus, had Minister properly
implemented discretion. Thus, you cannot be a domicile by being a non-alien.
Australia‟s system of immigration control:
 The Migration Act 1958 (Cth): sets out the objects; regulations and schedules; ministerial and departmental policy and procedures; the Policy Advise Manual (PAM 3). 4: THE VISA SYSTEM
Migration Act 1958, s4: Object of Act: 1. The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens 2. To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain 3. TO advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering 4. To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act
Migration Act 1958, s13: Lawful non-citizens, (1) a non-citizen in the migration zone who holds a visa that is in the effect is a lawful non-citizen.
Migration Act 1958, s29: What is a visa? Visas, (1) subject to this Act, the minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia.
Migration Act 1958, s30: Types of visas Kinds of visas, (1) a visa to remain in Australia may be a visa, to be known as a permanent visa, to remain independently; (2) a visa to remain in Australia may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status.
Regulations, Sch 1: Classes of Visa: (short list) 1104AA. Business Skills — Business Talent (Migrant) (Class EA) 69 …………………………. 1108. Child (Migrant) (Class AH) 75 ……………………………… 1128C. Skilled — Independent (Migrant) (Class BN) 114 1129. Partner (Migrant) (Class BC) 126 …………………………….. 1134. Skilled — Designated Area sponsored (Residence) (Class CC) 135 1135. Skilled (Migrant) (Class VE) 137 1136. Skilled (Residence) (Class VB) 138
1135, Skilled (Migrant) (Class VE):
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Forms: 1276 and 1276 (Internet). (2) Visa application charge: (a) First installment (payable at the time application is made): $2 105 …… (3) Other: (a) Application must be made: (i) as an Internet application; or (ii) by posting the application …. (b) Applicant seeking to satisfy the primary criteria must be less than 45. (c) Applicant seeking to satisfy the primary criteria must nominate a skilled occupation in his or her application. (d) …… (4) Subclasses: 175 (Skilled — Independent) 176 (Skilled — Sponsored)
Sch 2: Subclass 175; Skilled, independent: 175.1 Interpretation 175.111 In this Part: Degree has the same meaning as in sub regulation 2.26A (6). Diploma has the same meaning as in sub regulation 2.26A (6). Etc… 175.2 Primary criteria 175.211 Either: (a) the applicant has been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which the application was made; 175.212 (1) The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation. 175.3 Secondary criteria Note These criteria must be satisfied by applicants who are members of the family unit, or the interdependent partner or dependent child of the interdependent partner, of an applicant who satisfies the primary criteria. 175.31 Criteria to be satisfied at time of application 175.311 The applicant is: (a) a member of the family unit; or (b) the interdependent partner; or (c) a dependent child of the interdependent partner; Of a person who satisfies the primary criteria in Subdivision 175.21 and made a combined application with that person. 175.4 Circumstances applicable to grant 175.412 … each applicant included in the application must be outside Australia when the visa is granted. 175.5 When visa is in effect 175.511 Permanent visa permitting the holder to travel to and enter Australia for 5 years from the date of grant. 175.6 Conditions 175.611 If the applicant is outside Australia when the visa is granted: (a) first entry must be made before a date specified by the Minister for the purpose; and (b) if the applicant satisfies the secondary criteria for the grant of the visa, condition 8502 may be imposed; and (c) Condition 8515 may be imposed.
Schedule 8, Visa conditions: (sub regulations 2.05 (1) and (2)) 8502 The holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa. 8515 The holder of the visa must not marry before entering Australia.
Application form for subclass 175, skilled independent: Application form for the visa (1276): 1. General information (including all countries of residence for 12 months or more during the last 10 years) 2. Applicant skills (including skill assessment, language requirements, qualifications, employment and work experience) 3. Partner information and requirements 4. Points test – self-assessment 5. Details of migrating family members; dependents over 18; 6. Details of non-migrating dependents 7. Details of other family members (parents, dependent children over 18, brothers and sisters, 8. Sponsorship 9. Health requirements 10. Character requirements 11. Previous visas 12. Skill matching database (optional)
Procedures for dealing with visa applications:
1. s51A – 64 – procedural requirements.
2. S65 – if all requirements met, Minister is to grant the visa.
3. But minister has power to suspend processing in s84 and control numbers in s85.
4. Making a lawful visa application decision – see guidelines Vrachnas p47- 50.
5. If a visa is refused, requirement for notification of decision, providing reasons and explaining right to seek review in s66.
Migration Act 1958, s65: Decision to grant or refuse to grant visa: (1) after considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and … (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.
Migration Act 1958, s84: Minister may suspend processing of visa applications (1) the Minister may, by notice in the Gazette, determine that dealing with applications for visas of a specified class is to stop until a day specified in the notice (in this section called the resumption day); (2) where a notice is under subsection (1) is published in the Gazette, no act is to be done in relation to any application for a visa of the class concerned until the resumption day. Exceptions: Spouse, de facto or dependent child of Australian citizen, permanent residents, persons usually resident in Australia.
Migration Act 1958, s85: Limit on visas: The minister may, by notice in the Gazette, determine the maximum number of: (a) the visas of a specified class … that may be granted in a specified financial year.
Determination and review process: Original decision on visa, by Minister (or delegated).
 Merits review:
o Migration Review Tribunal: Decisions to refuse visas other than protection visas in Australia
o Refugee Review Tribunal: Decisions to refuse protection visas in Australia
o Administrative Appeals Tribunal: Decisions to refuse or cancel protection visas on character grounds; decisions to deport non-citizens convicted of certain crimes; decisions to refuse visas or cancel visas on the basis of failing the character test
 Judicial review, in Federal Court and High Court: Migration Reform Act 1992, restricted judicial review on migration on certain grounds; consequently, applicants went directly to the High Court (since there is a Constitutional guard on the High Court); in 2001 further reforms, it removed restrictions on judicial review to Federal Court but added a privative clause, s474.
S474(1), a privative clause decision:
a) Is final and conclusive
b) Must not be challenged, appealed against, reviewed, quashed or called into question in any court; and
c) Is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any court or any account
This wasn‟t successful however, since in Plaintiff S157/2002 v Cth (2003): Privative clause only prohibits review of decisions which do not involve jurisdictional error
Restrictions on visa applications, Haneef v Minister for Immigration and Citizenship [2007]: Facts are, Haneef was a doctor in Queensland on a Skilled Migrant Visa, was caught up in a claim he was related to some people who were linked to the [attempted] 2007 London Bombings. He was questioned by ASIO and AFP; he was ultimately charged, sought bail before magistrate; and against expectation of Government, granted bail (because Government‟s argument was so weak). Minister immediately sought to cancel Haneef‟s visa on “character grounds” (s501 of Migration Act, “refusal or cancellation of visa on character grounds”).
In s501(3): The Minister may: (b) cancel a visa that has been granted to a person, if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection (3) may only be exercised by the Minister.
Character test: s501(6) for the purposes of this section, a person does not pass the character test if: a) The person has a substantial criminal record (as defined by subsection (7)); or b) The person has or has had an
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association with someone else, or with a group or an organization, whom the Minister reasonably suspects has been or is involved in criminal conduct; or d) In the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: i. Engage in criminal conduct in Australia; or ii. Harass, molest, intimidate or stalk another person in Australia; or… Otherwise, the person passes the character test.
Statement of Reasons of the Minister: Under the heading, ―CHARACTER TEST‖, the following appears: 1. I noted that on 14 July 2007, Dr HANEEF was formally charged with intentionally providing resources to a terrorist organization, consisting of persons including Sabeel AHMED and Kafeel AHMED, being reckless as to whether the organization was a terrorist organization, contrary to section 102.7 Criminal Code Act 1995. 2. Dr HANEEF has advised the Australian Federal Police (AFP) that he is the second cousin of two people suspected of involvement in the London incident and the Glasgow bombings: Dr Sabeel AHMED and Dr Kafeel AHMED. Further, I note that since leaving the UK, Dr HANEEF and Dr Sabeel AHMED have been in correspondence via on-line chat rooms. The most recent correspondence was on 26 June 2007, regarding the birth of Dr HANEEF’s daughter. From this information, I reasonably suspected that Dr HANEEF has, and has had previously, an association with Dr Sabeel AHMED and Dr Kafeel AHMED. 3. Dr Sabeel AHMED and Dr Kafeel AHMED are suspected of involvement in the London incident, and the Glasgow bombings. Based on this information, and further information provided to me including section 503A protected information, I reasonably suspect that Dr Sabeel AHMED and Dr Kafeel AHMED are, or have been, involved in criminal conduct. 4. Based on the information provided to me, including section 503A protected information, I reasonably suspect that Dr HANEEF does not pass the character test by virtue of section 501(6)(b) in that he is a person who has or has had an association with Dr Sabeel AHMED and Dr Kafeel AHMED whom I suspect are or have been involved in criminal conduct.
The Minister concluded his Statement of Reasons with the following: 32. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) Ministerial Direction 21 under s499 of that Act and (3) all other evidence available to me. 33. Having formed the necessary suspicion that Dr HANEEF does not pass the character test, and having decided that cancellation of Dr HANEEF’s visa would be in the national interest, I concluded that the seriousness of Dr HANEEF’s suspected conduct and, to a lesser extent, the expectations of the Australian community outweighed all other considerations mentioned above. 34. I therefore decided to exercise my discretion to cancel Dr HANEEF’s visa under s501(3).
Haneef v Minister for Immigration and Citizenship [2007]: Spender J: To fail the character test, „association‟ in s501(6) must be more than an innocent association. Therefore Minister made an error of law (interpretation of the statute). Error went to jurisdiction so the decision a nullity. 5: OVERVIEW OF VISA CATEGORIES
General issues in Australian migration policy:
 Population growth: overall numbers of migrants
 Balance of family reunion, economic and humanitarian migration: social cohesion; mental health
 Balance of permanent and temporary migration: social cohesion; immigration and emigration
Family migration, subclasses:
 Spouse
 Child
 Adoption
 Parent
 Interdependency
 Aged Dependent relative
 Remaining relative
 Carer
 Orphaned relative
 Designated parent
 Contributory parent
Sponsorship requirements: Sponsor must be Australian citizen. Residence requirement. For most visas, requires an assurance of support and payment of bond.
Spouse/partner visas: Engaged couples, de jure and de facto spouses. Same sex couples eligible, but more limited options. Relevant relationship, „parties have a mutual commitment to a shared life to the exclusion of all others‟ – evidence of the relationship, cohabitation; joint finances; evidence of joint life together (Green Card). Initial application for provisional visa (subclass 309/310). For spouse visa: hold provisional visa; 2 years have passed in continuing relationship.
Spouse visas: Exceptions to continuing relationship – domestic violence, the dilemma, proof of relationship AND relationship breakdown; the evidence required of domestic violence. Death of sponsor.
Children: Must be dependent child, generally under 18. Natural, adopted or orphaned relative. Inter-country adoption: Hague Convention on Inter-country adoption; Australian legal requirements, State and Commonwealth responsibilities; overseas legal requirements, in particular, authorities must approve the departure of the child for the purpose of adoption; House of Representatives Standing Committee on Family and Human Services, „Inquiry into Overseas Adoption‟, 2005.
Other family categories:
 Parents: Contributory and non-contributory sub-classes; criteria discussed in seminar
 Remaining relatives: Last relative of Australian resident (e.g. of an elderly parent)
 Carers: Carer who is also a relative of an Australian resident (the sponsor); sponsor must have been assessed by Health Services Australia as having a specified impairment rating
Business visas: Includes, people wishing to establish or buy into a business in Australia; investors; executives. Main criteria, requires substantial evidence of established, successful business – for example, evidence of business ownership, financial records, evidence of participation in the day to day management of the business for two (2) of the four (4) fiscal years prior to application; financial assets, at least $500,000. Start out with provisional business, and if business successfully established apply for permanent visa.
Skill based visas: Two categories: independent and Australian-sponsored (more points), as based on points test. Additional points for skilled occupation list; occupations in demand list.
Issues in relation to skilled migration: Ethical issues relating to sourcing skilled migrants from developing countries. Economic impact in Australia, on local employment, on local training, on economy. 6A: CONTROLLING MOVEMENTS OF PEOPLE
Mechanisms of control: Employee sanctions. Legalization programs, „legalizations can be interpreted as evidence of governmental inability to prevent illegal migration or as evidence that sovereign states can adapt to, and cope with, international population movements in the era of globalization‟ (Age of Migration). Criminalizing people smuggling and trafficking. Regional integration (the example of Europe, where there are lots of „illegal immigrants‟).
The migration industry: [There is] “a vast unseen international network underpinning a global labor market; a horde of termites … boring through the national fortifications against migration and changing whole societies” (Quoted in Age of Migration). Agents, transporters, financial institutions.
The Australian context: Means of entry to Australia limited by land or boat. The effectiveness of the visa system. Becoming unlawful includes over staying, entry without authority, and character (or other) grounds. Consequences of being unlawful, include removal and deportation.
Cancellation of visas: „notation of intention to cancel’; grounds – incorrect information, character grounds (Migration Act, s500), if decision made by Minister, no merits review (e.g. Haneef); if decision by Department, Merits Review before the AAT.
Australian context: immigration offences: Subdivision A—General offences 229 Carriage of non‑citizens to Australia without documentation 230 Carriage of concealed persons to Australia 242 232A Organizing bringing groups of non‑citizens into Australia 233 Persons concerned in bringing non‑citizens into Australia in contravention of this Act or harboring illegal entrants 234 False papers etc. 235 Offences in relation to work 236 Offences relating to visas
Criminalizing people smuggling and trafficking:
Migration Act, Section 232A : A person who: (a) organizes or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people; and (b) does so knowing the people would
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become, upon entry into Australia, unlawful non-citizens; is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.
Section 233 provides: (1) A person shall not take any part in: (a) the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of this Act; Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
President Mason in Feng Lin [2001]: “Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society. It undermines the attempted equities of an organized immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline.”
The dilemma of smuggling refugees: “There is nothing illegal about charging people for helping them reach safety, any more than there is something illegal about fleeing for your life in the first place. And governments, including Australia’s, implicitly recognize this when they set up or endorse refugee camps which people can only reach by fleeing unauthorized across borders.” (Chandran Kukathas, „The Strange Virtue of People-Smuggling‟ (2003) September Quadrant 40, 40.)
Refugees and asylum: Supply and demand; The Australian context, source of refugees; the means of control in the humanitarian program; disruption activities in Indonesia.
The Tampa: Facts are, Palupa was fishing boat that left for Indonesia. Tampa was on its way to Singapore. SOS (from Australian Coastguard) who noticed boat in distress; Tampa picked up people on the boat. There were 434 people on boat. It took several hours to get people off Palupa. Initially, captain was allowed to enter Australia. Official had spoken to Canberra, then said they couldn‟t come in. He then went towards Indonesia. Once he turned around, 433 people protested, and number of them threatened to harm themselves. Captain feeling outnumbered said “okay”, and started heading for Australia. When 12km offshore in Australia, The law in relation to on-shore arrivals prior to the Tampa incident: mandatory detention; processing of claims through tribunals and courts; executive attempts to reduce the role of the Courts.
The new policy: Pacific solution; border control (SIEV 1 – SIEV X); TPVs; conditions in detention; the cost of detention; demonization of asylum seekers (children overboard). The outcomes of new policy. 6B: FAMILY AND BUSINESS MIGRATION TO AUSTRALIA
What are the comparative benefits to Australia of migration via the family stream and migration via the economic stream (business and skilled migration)? How has the balance changed over the past 20 years? Have we got the balance right?
Permanent Migration Outcomes, Migration and Humanitarian Visa Eligibility:
Main changes in Australia‟s Migration Policy since 1989:
1. Change in focus: from family to skill-oriented
2. Skilled Migrant Program: SOL and MODL
3. Skilled migration to certain regions: 2007-08; state/territory agencies approved over 2100 sponsorship applications, meaning around 94% of all business skills provisional visa applications were state/territory sponsored
4. Change in emphasis from permanent to temporary migration: 2006-7; 148,000 permanent non-humanitarian visas issued, 493,000 temporary visas issued
General Skilled Migration (GSM) Program: Designed to attract young, highly skilled people, with a good level of English language ability and skills in particular occupations that are required in Australia. These occupations are listed on Australia‟s Skilled Occupation List (SOL). People applying for a GSM visa will need to:
 Be under 45 years of age at the time they apply
 Have an occupation listed on the SOL
 Have their skills assessed as being suitable for that occupation by the relevant assessing authority
 Have a good level of English language ability
 Have recent skilled work experience or have recently completed an Australian qualification as the result of two (2) years full-time study in Australia
 Most visas require that applicants are assessed against the GSM points test and obtain a pass mark
Permanent non-humanitarian visa grants:
Proportion of skilled visa grants, by broad groups:
Comparative benefits to Australia of migration via the family stream and economic (business and skilled) stream: Family stream Economic (skilled stream) Both Characteristics A potential migrant is sponsored by a relative who is an Australian Potential migrants are selected for their capacity to contribute to Australia‟s Ensure that only job ready and productive immigrants citizen, or a permanent resident of Australia (often, but not always, a previous migrant). Such persons generally include spouse, dependent child or aged relative. Largest category of migration. commercial and economic development. Either sponsored by employer or job offer or critical skill. English language requirements are admitted, naturally implies language component. Increased proficiency in English language means increased likelihood of social integration and community involvement. Economic growth Weak positive effect. Can‟t say definitively what their effects are as a whole re welfare (lower than Aust born), unemployment, earnings. Nil effect because sponsorship requirements ensure they make no demands on domestic system. At the start expenses outweigh revenues, though balance is reached for migrants in the Family Stream by year 10. More substantial contribution to economy. High income, direct tax payment. Meet employment gaps. All international migration has economic dimensions. Human motility makes economies more efficient. Help lift countries out of economic crisis. Higher rate of growth increases with liberalisation of immigration. Likely to enhance economic growth and welfare of both natives and migrants. Beneficial for consumer and household spending. Unemployment No more than Aust Born. Unemployment closely related with low education Better labour skills, business skills. Higher level of employment compared to Australian born. High levels of unemployment when migrants first arrive. But overall little impact. Adverse impact on wages and employment opportunities of competing native groups. May push down real wages but this staves off inflation. Create new businesses and jobs and fill labour market gaps. Investment Bring very little money with them. But requirement to provide bond/sponsorship undertaking ensures that migrants with some capital are self-selected for migration. Sometimes rely on remittances from overseas. Largest wealth transfers. Family members used in family run businesses. Public finance Those with lower level of skills make greater demand on the public purse in the medium term. In the long term, cost on public finance no different to Australian born. Positive contributions in short term and long term. Less likely to be on welfare or use government assisted language tuition programs. More favourable effect than non-immigrants on the whole. Av income Low income associated with low education. Higher level of qualifications lead to higher income. Higher levels of home ownership Neutral – positive impact on income levels and distribution Social Those with family support find the migration process less stressful. Social support network helps transition. Creates Those with more skills adapt better to their destination country. Fall in fertility rates, decline in working age population. Ensure economic sustainability and growth of the economy but they only
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stability within families. Develop their own social and economic infrastructure, length of stay increases, less likely to return to homelands – linked with needs of migrant‟s children. make a small contribution since migrants tend to take on the patterns of the host society in the long run. Cultural diversity. Conclusion: Interlinked May encourage skilled migration who would otherwise not consider relocating. May encourage family migration. Economically active people start off temporary, return home, remigrate with families. With the birth of children settlement takes a more permanent character. Flows to family reunion, undocumented arrivals or asylum seeker Benefit the Australian economy by: developing international markets; business networks in those markets; transferring investment funds and expanding the nation‟s capital base; creating or maintaining employment; introducing new technologies and, exporting goods and services. Overall increase business and labour skill of Aust economy. Economic migrants generally do not select their settlement location for commercial reasons but more for reasons of family, friends and other prior connections. Broader „education-tourism-economic migration‟ linkages vs segmented „economic migration‟ focus.
Have we got the balance right? The primary focus of migration policy since the 1980s has been the labor market outcomes of migrants. Three of the main arguments made in favor of the current policy model:
 Important for Australia to remain competitive in the worldwide market for skilled migrants
 Skilled migrants will strengthen the economy
 Temporary migration (most commonly associated with skilled migration) usually leads to permanent migration
How do we define “balance”? When policy maximizes the economic advantage of migration but also encourages permanent migration and eases the transition of migrants into the Australian community.
Have we struck an ideal balance between economic and family migration?
a) The current policy of emphasizing economic migration over family migration is important for Australia to remain competitive in the worldwide market for skilled migrants. BUT, could we be using the higher demand for family migration to our advantage?
b) Skilled migrants will strengthen the economy, BUT there are reasons to question the framing of policy on almost entirely economic factors – centrality of the migrant family in Australian nation-building; political rather than commercial motivations for migration; minimal knowledge of Australian business practices and labor-market regulations
c) Temporary migration (most commonly associated with skilled migration) can lead to permanent migration, BUT there is also evidence to suggest that skilled migration is often not permanent. Migration via the family stream carries more incentives for migrants to remain permanently in Australia.
What are the problems with the current “balance”? “The trend towards temporary migration over permanent settlement, the favoring of short term outcomes over long term ones and the trend towards using immediate employability as the primary measure of settlement potential”. 7: TEMPORARY VISAS
Overview of temporary visas (granted 2007-08):
 Non-business visitors: 3,191,678 (Includes visa for tourist, sponsored family visitors and visitors for prearranged medical treatment)
 Business visitors: 418,250
 Student: 278,184
 Working holiday makers: 154,148
 Business (long stay): 110,570
 Others: 44,530 (Other temporary visas include social/cultural, international relations, educational and medical practitioner visas)
 Total: 4,197,360
Permanent (2007-08):
 Skill stream: 108,540
 Family stream: 49,870
 Special eligibility stream: 220
 NZ settlers: 34,491
 Humanitarian: 13,014
 Total: 206,135
Short stay business visitors: Over 80,000 from China and then 60,000 from US.
Working holiday makers: Over 30,000 from each of UK and South Korea
Student visa grants, by education sector (2007-08):
 ELICOS (570): 30,545
 Schools/secondary exchange (571): 16,976
 Vocational education and training (572): 68,382
 Higher education (573): 130,127
 Postgraduate research (574): 6,935
 Non-award (575) / Other: 20,698
 AusAID / Defense (576): 4,521
Student visas (country of origin):
 China (2007-08): 49,763
 India (2007-08): 47,639
 South Korea, Thailand, and Brazil: Over 10,000 each
Issues with student visas: Dramatic growth in numbers (2007-08, 278,184). Lack of regulation of vocational education and training providers; exploitation of students, low standards. Expectation of a link between study and permanent settlement. Impact on reputation of Australian higher education providers.
Business migration: Temporary business (long stay) visa (457); medical practitioner visa (422); educational visa (418).
1. Visas valid for four years
2. Multiple entry
3. No access to Medicare or social security
4. Minimum skill and salary requirements
457 visas: Must be sponsored; numbers more than tripled from 2002-03 to 2007-08 to 110,570. UK, 10,660; then India, 8,250; then South Africa, Philippines, China, and US.
Main industries and occupations:
 Health and community services: 9,090
 Construction: 5,690
 Communications services: 5,200
 Manufacturing: 5,480
 Mining: 4,890
 Property and business services: 6,020
Issues with 457 visas: Balance of permanent and temporary visas. Demand for permanent places for temporary visa holders – 2007-08, skilled migration scheme accounted for 47% of all onshore additions to the resident population (other main on-shore categories are family and student).
“If temporary migration does outstrip permanent migration in future, then there may be a mismatch between the settlement places available and the number of aspiring residents who will have already invested significantly, both financially and psychologically in Australia.”
Pressure on local wages and jobs. Exploitation of temporary workers, the power disparity – for example, two step migration process (457 visa holders need the support of their employers to gain permanent residency); can only work for a single employer, „if a residence visa is tied to a particular job with a particular boss, then migrant workers are less likely to protest against or expose exploitation‟. Formal warnings from Department of Immigration to employers in 2007-08, 1353 and 192 employers sanctioned.
457 visa stories: 457 nurse sacked for arriving pregnant (Singapore). Malaysian chef paid less than $10,000 for 18 months work. Workers have money withdrawn from wages for expenses and accommodation.
Review of 457 visas: Department appointed Industrial relations commissioner to conduct a review of the integrity of 457 visas. Final Report October 2008.
Recent changes:
1. Introduction of market salary rates to replace minimum salary levels in September 2009
2. Increase in the English language skills requirements for all chefs and lower skilled occupations
3. Introducing formal trade assessments for all trades from countries that are not considered low-risk countries
4. Employers demonstrate a history of non-discriminatory employment practices
5. Formal training for employer sponsors
6. Requirement of labor agreements for low skilled occupations
Pacific Seasonal Worker Pilot scheme: Seasonal work in horticultural industry. Particular labor needs in horticulture. Pilot program beginning this year – four Pacific Island countries (Kiribati, PNG, Tonga and Vanuatu); select employers in Victoria (Swan Hill and Robinvale regions) and NSW (Griffith region); employers need to demonstrate that they have tested the local labor market.
Benefits for Pacific nations – skills; remittances
Benefits to Australia – fill labor shortages; aid to pacific nations; not designed to lead to permanent settlement
The burden of history – QLD sugar fields
What has changed? Highly regulated; pacific islands now have national identity. Labor practices (international and domestic law). Migration law – regular status, clear rules PART 3 9: REFUGEE AND HUMANITARIAN VISAS
Humanitarian visas in Australia:
 On-shore: The application and review process. Changes in policy from Howard to Rudd. Responding to an increase in onshore arrivals
 Off-shore: The classes of visa.
Also look at public & national interest requirements
Refugee convention: History of the convention (provided for political persecution from Communism).
Convention grounds: The definition of a refugee, Art 1A(2), “… the term refugee shall apply to any person who: (2) owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225: Facts are, couple fled China arriving in Australia by boat. Wife 8 months pregnant. Faced forced sterilization on return. Accepted by Minister that forcible
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sterilization was persecution and that couple faced a well-founded fear of being forcibly sterilized if returned to China. Question for the Court, were the couple ‘members of a social group’ (required for them to fear persecution for a Convention ground)
Brennan CJ in Applicant A: ACCEPTED; appropriate way to apply the definition of refugee:
1. Does the putative refugee fear persecution?
2. Is the fear well-founded?
3. Is the feared persecution practiced or likely to be practiced because of a characteristic of the victims that is not common to the members of the society at large?
4. Is the persecution practiced officially or is it officially tolerated or is the government of the country of the putative refugee’s nationality unable to control it?
5. Is the putative refugee unwilling to avail himself or herself of the protection of the country of his or her nationality?
6. Is that unwillingness due to the feared persecution?
Dawson J on membership of a particular social group: “a particular social group… is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large” | “what unites them cannot simply be ‘fear of persecution’” | “requires some sort of voluntary association, even if it before the purpose of asserting a particular human right (including the right to reproduce)” – “in the absence of such an association, there is nothing to unite a collection of persons in China who do not accept the limits imposed upon their reproductive freedom”
McHugh J, emphasized the required nexus between ‘persecution’ and ‘membership of a particular social group’. That is, ‘by reason of’. Larger the group, harder it is to make out the connection, for example of prisoners. Difficulty of distinguishing whether discrimination is on the basis of membership, or on refusal to comply with regulations (query, can it be both?) | This case lists groups in US and Canada which have and have not been accepted as members of a particular social group. | Association with other Convention grounds suggests social grounds intended to be large in number. | Concludes like Dawson J that not members of a particular social group as the groups is “defined by reference to persecutory conduct”
Sanchez-Trujillo v Immigration and Naturalization Service (1986): Held that a “class of young urban, working-class males of military age who maintained political neutrality” was not a “particular social group”. “The phrase ‘particular social group’ implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental or their identity as a member of that discrete social group.”
Applicant A: Distinction between the majority and minority. Interpretation of the Convention as a whole -protection limited to people facing persecution; AND facing persecution on defined grounds. Particular social group as a “safety net” for other convention grounds, or a further limited ground
Dawson J, “By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is nota refugee within the terms of the convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees”
Relevance of view of Convention to the interpretation of “membership of a particular social group”, Brenann CJ, Dawson J.
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1: Facts. Gummow J’s (majority) interpretation of “membership of a particular social group”. Minority views: Gaudron J, McHugh J, Kirby J. 10: PERSECUTION
Interpreting the Convention: Who interprets convention provisions? UNHCR; Domestic courts. What resources do domestic courts rely on to interpret the provisions? Australian legislation; text of convention; history of convention; material surrounding the Articles of the Convention; secondary materials (e.g. academic commentary)
Article 31 of the Vienna Convention on the Law of Treaties: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its objects and purpose”
Dawson J in Applicant A (1996) 190 CLR 225, “[The interpretation of the Refugees Convention[ involves the construction of a domestic statute which incorporates a definition found in an international treaty. Such a provision, whether it is a definition or otherwise, should ordinarily be construed in accordance with the meaning to be attributed to the treaty provision in international law."
Text (Articles 1-46); Schedule (paragraphs 1-16); preliminary remarks of the Final Conference of Plenipotentiaries on the Status of Refugees and Stateless persons. Point II: "The Conference decided, by 17 votes to 3 with 3 abstentions, that the titles of the chapters and of the articles of the Convention are included for practical purposes and do not constitute an element of interpretation."
Conference recommendations (A to E).
Preamble: The high contracting parties,
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, [etc]
Travaux Preparatoires: 35 meetings of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons
Overview of the convention: Notes, Article 1 (definition); Article 2 (rights of refugees in the receiving state, same as other aliens, or as nationals so far as possible. Including rights to employment, public education, welfare and housing)
Article 31: Refugees unlawfully in the country of refugee
Refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain
admission into another country.
Article 33: Prohibition of expulsion or return (“refoulement”)
Prohibition of expulsion or return (―refoulement‖)
1. No Contracting State shall expel or return (―refouler‖) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Article 34: Naturalization
Naturalization
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
Migration Act and the Interpretation of the Convention: For example, Subdivision AK—Non‑citizens with access to protection from third countries | 91M Reason for this Subdivision: This subdivision is enacted because the Parliament considers that a non‑citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re‑enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non‑citizen who is an unlawful non‑citizen will be subject to removal under Division 8.
Defining persecution: The degree of harm for conduct to amount to persecution: Chan Yee Kin (1989) 169 CLR 379: Mason CJ at 388: “some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm … as part of a course of selective harassment of a person .. Amounts to persecution if done for a Convention reason”
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989)169 CLR 379: Dawson J at 396-7: “Some would confine persecution to a threat of life or freedom, whereas others would extend it to other measures in disregard of human dignity”
McHugh J at 429-31: “Measures ‘in disregard’ of human dignity may, in appropriate cases, constitute persecution …”
McHugh J in Ibrahim (2000) 204 CLR 1, at [55] –[65]: “[55] Persecution involves discrimination that results in harm to an individual, but not all discrimination amounts to persecution. With the express or tacit approval of the government, for
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example, some employers may refuse to employ persons on grounds of race, religion and nationality. But discriminatory though such conduct may be, it may not amount to persecution. Other employment may be readily available.”
s91R (2001): Modification of “persecution”
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The meaning of persecution in Australian law: Serious harm, Vrachnas et al advocacy for a narrow interpretation: State’s small appetite for refugees; Distinction between genuine refugees and economic refugees.
Other elements of persecution:
 Motivation: Not random persecution but directed at the attribute of person
 Systematic conduct: See s91R(1)(c), McHugh J discussion in Ibrahim (2000)
 Causation: s91R(1)(a)
 Persecution vs. Prosecution: Critique of Vrachnas (lecturer thinks this is a false dichotomy)
 Persecution by non-state agents – failure of the State to Protect. See Minister for Immigration and Multicultural Affairs v Respondents s152/2003 (2004) 222 CLR 1 – Jehovah‟s witness in the Ukraine.
 Responsibility to avoid persecution: Fact that can avoid coming to the attention of authorities does not disentitle a person from refugee status. [note bizarre commentary in text book at p250 – to critique in lecture]
Well-founded fear of persecution:
1. Subjective and objective elements
2. Objective element – the danger of probabilities
McHugh J in Chan: “an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot …‟ SGKB v MIMA, [2003] FCAFC 44, [18], “ As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate.”
Sur place claims: 1. Change of circumstances in country of origin (but not in the country when that occurred) | 2. Voluntary behavior.
91R Persecution
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted … disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Relocation: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18: Facts are, Ukrainian journalist criticized politician well-connected to national politician. Question whether person allowed to relocate. 11: LIMITS ON PROTECTION OF REFUGEES
What are the limits on refugee claims under the convention? Limits within the definition of “refugee” itself; Limits within Article 1 of the Convention.
Article 1C:
C. This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it, or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1: Facts are, granting TPV to Afghan person. Eventually, PPV was refused, based on that things had changed in Afghanistan. Tribunal upheld, saying that cessation clause (in 1C(5)) applied. This was upheld by Dawson J in the Federal Court; but applied 1A(2) instead. Full Court disagreed; and was successful here (stated HAD to satisfy 1C(5).
Majority, Gummow A-CJ, Callinan, Heydon and Crennan JJ: Interpreting the Migration Act 1958, s36 – words of the Act which govern; Act only refers to definition of Refugee in Article 1A(2); rest of convention may be referred to, but only for the purpose of aiding in construction of the Statute.
Majority: The relevant law of Australia is found in the Act and in the Regulations under it. It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations. … The Convention has not been enacted as part of the law of Australia. … Section 36 of the Act is the only section … which refers in terms to the Convention. That does not mean that thereby the whole of it is enacted into Australian law.
By reason of s 15AB(2)(d) of the Acts Interpretation Act, the Convention may be considered for the purposes described in s 15AB(1). Further, Australian courts will endeavor to adopt a construction of the Act and the Regulations, if that construction is available, which conforms to the Convention. … But despite these respects in which the Convention may be used in construing the Act, it is the words of the Act which govern.
Majority focus on s36, and note: Not concerned with permanent protection; Protection only if person satisfies definition of a refugee. Therefore, fresh inquiry into this question every time relying on Art 1A(2). This is what the s36 of the Act requires.
Majority in QAAH: [The principle concern of s36 of the Migration Act] is with protection of a person against a threat or threats of certain kinds in another country. [It does not] require that when the threat passes, protection should be regarded as necessary and continuing.”
Offer an interpretation of Article 1C(5) even though majority held that it is not required to conclude the appeal. Article 1C(5) operated automatically. So that a person ceases to be a refugee when circumstances change. Not triggered by request for a visa.
Kirby J (in dissent):
1. Relationship between Australian law and the Convention
2. Value of assistance of the UNHCR
3. Relationship between Art 1C(5) and Art 1A(2).
4. Does Art 1C(5) require a change that is „fundamental’, „stable’ and „durable’
“Protection” and “recognition”: s36 of the Act incorporates a distinction that is central to the operation of Art 1 of the Convention, namely, the distinction between recognition of a person as a refugee; and the conferral of Australia’s protection. Recognition, as envisaged by the Convention, can only lapse in accordance with one of the cessation grounds set out in Art 1C. Protection, on the other hand, may lapse in accordance with the provisions of the Act. Because they are distinct processes, the lapse of protection does not necessarily have any causal effect on a person’s recognition as a refugee.
Reforming refugee law: Australian law (case on interpretation of Art 1(2); introduction of s91R in 2001). Ought Courts adopt a wide or narrow interpretation? The process argument – the role of Courts vs. role of Parliament; the policy argument – the appropriate scope of refugee protection.
The appropriate scope of refugee protection – the case for wide and narrow interpretations; the case for reforming the convention and fundamentally rethinking the definition of a “refugee” – the wide acceptance of the Refugee Convention; the textbook proposal – remove convention grounds; utilitarian approach – focus on suffering.

You can also get it from the PDF, but in case you dont have PDF (lol), it is here:

© 2009 Jeremy Shum 1
ADMINISTRATIVE LAWMERITS (COMMONWEALTH & STATE) Commonwealth Merits review State Merits review
Existence
Creature of statute, which will confer:
 Who may seek Merits Review of a decision
 Imposing pre-conditions upon that Merits Review
 Imposing time limits upon seeking review
 Varying the normal procedure of the Merits Review body
Depends upon standing1
Decision
Review body standing in shoes of original decision maker
 Fresh decision based on facts before them2
 Can review any “decision”, even if it wasn’t even in the correct jurisdictional initially3
 Can admit new facts to tribunal4 5, based on new law (even if changed since)6
 Can be with power beyond that of the original decision-maker7
 Rules of evidence/procedure do not apply, but can still take witness and take oaths8
 Decision maker will provides reasons9
 Can obtain reasons from original decision maker10
 Is not bound by Government policy (but will not do so without “cogent reasons”)11
Generally not “de novo” (full merits review) rehearing as under Cth AAT, but rather, is an appeal in a strict sense12 unless there exist “cogent reasons”13
 Based purely upon facts in front of original decision maker14
 “Cogent reasons” is an “injustice”15, “persuasive, compelling or convincing”, “more than mere disagreement”16.
Remedy
Fresh substantive decision17
 Can affirm original decision18
Fact/Law distinction
Merits review considers both questions of facts, and questions of law JUDICIAL REVIEW (COMMONWEALTH & STATE) Commonwealth Judicial review State Judicial review
Existence
Common law development
Decision
Court limited to legal error (including lack of procedural fairness, unreasonableness, acting for improper purpose, failure to exercise jurisdiction)
Remedy
Quashed, remitted to original decision maker to be remade
 These equitable remedies19:
o Declaration: No coercive effect, but declares rights/obligations
o Prohibition injunction: Similar to prohibition
o Mandatory injunction: Similar to mandamus
 Since Supreme Court exercises jurisdiction of English Court of King’s Bench, we grant these “prerogative writs”20:
o Certiorari: Quash a decision already made
o Prohibition: Prohibit/prevent unlawful action being taken
o Mandamus: Order/command certain action be taken
Jurisdiction
 Constitution21 (High Court): No remedy for certiorari or declaration
 Judiciary Act22 (Federal Court): Essentially duplicates the Constitution jurisdiction (but does NOT include Federal Magistrates)
 AD(JR) Act23 (Federal and Federal Magistrates Court): Reviews only decisions24 of an “administrative character, made under an enactment”25 (rather than contract law26 27 28, by a private corporation29), excluding G-G decisions & others in Schedule 1 of the Act. AD(JR) reviews are preferred, if possible (is fully statute, and isn’t a common law remedy like the others).
 Supreme Court Act30 (Supreme Court)
Justiciability (Requirement)
“Justiciable” means suitable for judicial review (DOES NOT apply to AD(JR) Act, which requires decisions to be of an “administrative character”), of which immunities (“non-justiciable matters”) are based upon the subject matter of the decision in question:
 Includes defense and national security, and foreign relations31
 Includes powers relating to administration of justice32
 Includes polycentric decisions (affecting a lot of people)33
 Does not include “in-principle” Ministerial and Cabinet Decisions34 35
 Does not include prima-facie prerogative powers36 37 (doesn’t mean, it will automatically happen!)
Standing (Requirement)
“Locus standi” means action brought by person with “sufficient interest”:
 Attorney-General (fiat) ALWAYS has standing, but rare due to political nature
 Public interest litigation: Must have “special interest”38:
o Includes more than mere intellectual/emotional concern39
o Includes matters a part of their job40
o Includes matters relating to the environment (if cared about by people)41
o Includes parties with involvement in statutory process42
o Includes a Union representing members43
o Includes commercial competitors44
o Excludes bias Acts of Court45
o Excludes mere commercial interest46
Remedy Standing test
Certiorari
Person Aggrieved
Prohibition
Person Aggrieved
Mandamus
Special Interest
Injunction (equitable remedy)
Special Interest
Declaration (equitable remedy)
Special Interest
AD(JR) Act
Person Aggrieved
Fact/Law distinction (Requirement)
In judicial review, only questions of law are reviewable; unless questions of fact are unreasonable (not just wrong). So it depends on whether reference is made to:
 Finding primary facts: A question of fact, unless there is:
o No evidence47 48 (even more restrictive for the ADJR Act) which is a question of law
o Drawing “unreasonable” inferences49: If 1 inference can only be drawn, and the decision maker draws a different inference, which is a question of law
 Determining the law: A question of law, otherwise as shown below50 (these propositions are criticized as being ‘artificial, if not illusory’51).
o Whether a word or phrase in statute is to be given its ordinary/technical/other meaning is a question of law
o Ordinary English word, or its non-legal technical meaning is a question of fact
 If a word is defined in statute (e.g. the word “business”), its correct meaning is always a question of law
 A word in statute if it has been subject of judicial consideration in previous binding decision is a question of law
 If from its overall statutory context, making it clear, that a legal meaning is intended, it is a question of law
o Meaning of a technical legal term is a question of law
o Effect or construction of a term whose meaning or interpretation is established is a question of law
o Whether facts fully found fall within the provision of a statutory enactment properly construed is a question of law
 Applying law to the facts: Generally an error of fact:
o Where application of law to facts is a question of degree (e.g. “well founded fear of persecution”), it is a question of law
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o It is plainly unreasonable52, it is a question of law
Preconditions to power (Requirement) Jurisdictional facts Subjective opinion clauses Procedural preconditions
Facts that must exist (these are exceptions to that court cannot look at facts)
Requires the administrator’s subjective opinion
How to challenge
Show facts required to exist did not. To show that facts are jurisdictional53:
 Include: Statute conditions existence of fact
 Include: Fact objectively required, not just the decision maker’s subjective opinion that it exists
 Include: Fact is central to the statutory scheme, in that different “regulatory schemes” come into operation depending upon the facts’ existence or not
 Exclude: If fact requires a lot of subjective value judgment, less likely to be jurisdictional
 Exclude: Question of fact is the whole of the matter committed to the decision maker
Courts can receive new evidence54.
That there was NO evidence, or plainly unreasonable55, giving review to all facts and circumstances56 (Otherwise, it is VERY hard to argue due to the subjectivity57) Examples of subjective (“reasonable cause to believe”58) requirements:
 “If the Minister is satisfied”
 “Reasonable cause to believe”
 “Believes, on reasonable grounds”
 “If, in the Minister‟s opinion”
Show procedures required did not occur
Remedy
Does not always invalidate the subsequent administrative action59; test is, “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”60.
Hearing rule (procedural fairness) (Ground of review)
What: A chance to have a say before a right is deprived of. Note these are not automatic rights; each applicant must show WHY it would be unfair to make a decision without these “rights”.
 A right to notice (case to meet, and consequences) of a potential adverse decision being made61, with sufficient time62
 A right to disclosure of substance (not every detail) of adverse allegations63 / information known to the decision maker
o But doesn’t necessarily have to be an oral hearing, unless credibility is an issue64
 A right to present ones „case‟ in response
 A discretion to allow documents, witnesses, making submissions
 A right to adjournment65
 A right against unreasonable delay66
 Do not necessarily include processes depending on the context of the investigation67
 Do not necessarily need a lawyer68
 Do not necessarily need to cross-examine others69
When: The Kioa test70, whether the decision affects upon the:
1. Rights: Includes legal rights and statutory entitlements such as licenses, the historical scope of the procedural fairness rule;
2. Interests: Broader than rights, main thing is that the interest is different from that of the public generally; or
3. Legitimate expectations: Where government has represented that a benefit will be granted or a procedure followed (such as UN Treaties71), may be unfair to depart from that representation without warning
Whether the effect is (meets the following qualifications)
1. Effect must be sufficiently direct and individualized: Those made about a particular person or class of persons. It does NOT apply to “policy” decisions of generally application, e.g., decisions to impose new taxes, where a hearing would be impractical; and
2. Can be excluded by clear statutory intent72: They may not be easily convinced the legislature intends this73. Some exclusions include:
a. Urgency or emergency powers: Excluded in full, but doesn’t include the need for political urgency74
b. Anti-terrorism “control orders”: But UK House of Lords has noted need for procedural fairness75
c. Criminal intelligence: As in bikie76 and liquor licensing77 cases
Rule against bias (Ground of review)
What: That decision makers should be impartial78, and not have prejudice. They also need to be SEEN as impartial. Note there are different standards for different types of people, particularly a (seemingly) lower standard for Ministers79. Two types of bias:
1. Actual bias: Court’s reluctant , as may bring into disrepute institutions. Test is80, “a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”
2. Apprehended bias (also known as “ostensible”, “imputed” or “apparent” bias). Test is81, “Where a fair minded observer might reasonably apprehend that the decision maker did not bring an impartial mind to the matter”, also showing a “logical connection between the interest and the feared deviation from impartiality”82. Sub-categories of apprehended bias, include83:
a. “Interest”, for example financial interest84,; but does not include very small share interest85
b. “Association”, for example, close personal relationship, Director of lobby group involved86 (exclude’s husband’s seeming pre-judging statement87; requires reasonable proximity88)
c. Inappropriate contact between the decision maker and one side89, such as meeting one team’s lawyers outside chambers90 (may also be overridden by detailed judging summary91)
d. Acting as both judge and prosecutor92
e. Pre-judgment, might be evident from rude conduct93; previous statements made94; previous decisions95
Exceptions to the bias rule include:
1. Necessity, where an impartial decision maker cannot be found96, or the intended operation of the statutory scheme would be frustrated by the application of the rule
2. Waiver: Failure to object to bias may amount to waiver, at least where you know your rights97 98.
Abuse of discretion (Ground of review)
Abuse of discretion includes:
 Acting for an improper purpose99: Not authorized by statute. Also provided for by the ADJR Act100. If there are multiple purposes, a decision will be invalidated if the unauthorized purpose was “substantial”, that “but-for”101 the existence, it is likely a different decision would have been made. Finding the statute purpose is a process of statutory interpretation:
o Start with express objects/purposes if any
o If not, read statute as a whole, looking for any textual indications of purposes of its Act (e.g. title, structure, nature of power exercised)102
Political purposes can be argued103, but has to be supported by facts104. Other unapproved purposes include:
o Gaining money, using a statute for another purpose105
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o Clearly unreasonable purpose prima facie106
 Bad faith: Rarely argued; similar to improper purpose, but involves deliberate misuse of statutory power.
 Taking into account legally irrelevant considerations107 108 109; Failing to take into account a legally relevant matter110 111: This is easier to prove than “improper purpose” as there is NO “but-for” test. Few questions:
o Which matters are legally relevant and irrelevant (question of law)? Considers may be expressly stated112, but may not be exhaustive113. Considerations may be implied from the subject matter, scope and purposes of the power.
o How tightly defined are the relevant matters? A broad policy discretion makes it more difficult to prove irrelevant considerations114.
o What does it mean to “consider”? Silence does not prove non-consideration115
o What has been considered (question of fact)?
 Acting unreasonably: Rarely successful. Also provided for by under AD(JR) Act116. It is that “no reasonable person/body/administrator would have made the decision that was in fact made”117, including discrimination without justification118, where the administrative decision is not proportional to the goal to be achieved119, failure to execute duty of (very basic) inquiry120, or unreasonable application of statutory words to facts121.
 (Substantive ultra vires): Government acting without power122 123 124 125. Similar to “jurisdictional fact”. Also available under the AD(JR) Act126.
 (Procedural ultra vires): Similar to “procedural preconditions”. Also available under the AD(JR) Act127.
Failure to exercise discretion (Ground of review)
Principle:
 Appointed statutory holders of discretionary powers must NOT allow any other person to exercise the power for them
o Cannot delegate a discretionary power: But can be override by:
 Express powers to delegate: In the statute
 Implied powers to delegate: Recognizes “administrative necessity”128, and implies delegation. Need to look at statutory indicators, such as frequency of power; high level policy; complexity; discretion; specification. But it depends on the fact; sometimes Minister is required129.
o Cannot give discretion to a person higher in the administrative hierarchy (“rule against dictation”)130: But statute can provide higher level decision makers to give “general directions” (but not control the outcome) 131, even control process132. Orders found too extreme include veto power133. Excludes Cabinet decisions (assumed this will occur). Provided for under the AD(JR) Act134.
o Policy cannot be inflexibly applied: Policies are likely to exist135, but discretion upon decision makers, means they cannot be bound by inflexible application of policy. They:
 Must not be ultra vires to the statute136
 Must not be inflexibly applied: Must give regard to the individual merits of the case at hand. However, if discretions are based upon power grounds, the decision maker can be less flexible.
o Statutory holder cannot fetter the future exercise of their discretion either by contract or by representation:
 The discretionary nature of the power must also be retained
 Failure to act (or acting with unreasonable delay): An objective test137
Note that estoppel is NOT available in relation to the exercise of public powers138.
Jurisdictional error (Requirement)
What: Body’s authority to decide an issue. Even though the starting jurisdiction is right, it is possible to make a “jurisdictional” error of law subsequently139. Jurisdictional error includes:
 Purporting to exercise a jurisdiction they do not possess
 Failing to exercise a jurisdiction they possess
 Constructive jurisdictional error, where the administrative body has:
o Misconstrued its power
o Misunderstood the nature of its powers or functions
o Applied the wrong statutory test
o Asked itself the wrong question
No need for an error of law to be “jurisdictional” under the AD(JR) Act140. Note that jurisdictional error does NOT apply to the ordinary decision maker (they have “decision making grounds”)!! The presence of jurisdictional error depends on whether the error of law is by an inferior court or tribunal141 (note that names are not conclusive142):
 Errors of law by inferior courts143 do not put it outside of its jurisdiction (but denial of procedural fairness may attract remedy anyway)
 Errors of law by tribunals will put it outside of its jurisdiction
Craig may change though, since this law has waxed and waned. Commonwealth Judicial review State Judicial review
Privative clauses
What: Legislative section that purports to exclude judicial review Courts are likely to get around this144.
Always a minimum level of judicial review145 A privative clause will protect a decision as long as that decision146:
1. was a BONA FIDE attempt to exercise the power
2. relates to the subject matter of the legislation
3. is reasonably capable of reference to the power given to the tribunal
But in addition, in S157147, as a matter of statutory interpretation:
4. Inviolable limits must be respected
5. Imperative duties must be complied with
Ultimately, “jurisdictional errors” are NOT to be protected from review
Because no constitutional entrenchment of judicial review:
 Must judges exclude judicial review as per privative clauses148 149 150 151, using a very literal meaning
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1 S27 2 Drake v Minister for Immigration and Ethnic Affairs (1979) (per Bowen CJ and Deane J): Full Federal Court allowed the appeal on the basis that the Tribunal „failed to make an independent assessment … and, in the result failed properly to perform its function of reviewing the Minister‟s decision that a deportation order be made in respect of the plaintiff.” “The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.” “Tribunal entitled to treat … Government policy as a relevant factor for the Tribunal to take into account in reviewing the decision … But the tribunal is not … entitled to abdicate its function of determining whether the decision made was … the correct or preferable one in favor of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” 3 Collector of Customs v Brian Lawlor (1979): The facts, Commissioner of Customs revoked a warehouse license held by Brian Lawlor Automotive. BUT, they DIDN‟T have the right to do that; the Customs Act only empowered the Commissioner to revoke licenses for non-payment of fees. There was no express (or implied) provision to revoke a license in other circumstances (BL had paid its fees). The issue is, how could the AAT review the decision, as it was NOT in fact made under the Act, but only purported to be? Under s25(4), AAT has power “to review any decision in respect of which application is made to it under an enactment.” 4 S38-40 5 Re Greenham (1979) 2 ALD 137 6 Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80 7 Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32, in decision to recover overpayment, could consider waiver provisions also… 8 s40 9 S28 10 S37 11 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) (per Brennan J): Rehearing of the application of Drake in the Tribunal, bearing in mind the “Tribunal is as free as the Minister to apply or not to apply a policy”, however emphasizing the consistency of decisions. However, tribunal should not formulate policy. “The very independence of the Tribunal demands that it be apolitical; and the creation of its deportation jurisdiction is intended to improve the adjudicative rather than the policy aspects of deportation decisions.” The TEST is, “these considerations warrant the Tribunal‟s adoption of a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary.” 12 Coal & Allied Operations Pty Ltd (2000), per Gleeson CJ, Gaudron & Hayne JJ 13 District Court Act s42E: Conduct of appeal: The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it. The Court, on an appeal- Is not bound by the rules of evidence but may inform itself as it thinks fit; and Must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not
depart from the decision except for cogent reasons. 15 Mooney [2009] Brennan J used the same phrase in Drake (No 2) 16 Mooney, Tilmouth J 17 Administrative Appeals Tribunal Act 1975 (Cth) 18 Evans v Repatriation Commission [2009] AATA 7 (January 8, 2009): Facts are, Mr. & Mrs. Evans received a lump sum from the U.K. government, as back pay on their U.K. pensions over 7.5 years. However, had it have been paid gradually over those 7.5 years, it would not have affected their Australian entitlements. However, s46 of the Veterans Entitlement Act was applied, and the income was treated as received over 52 weeks, and their Australian pension entitlements were correspondingly reduced. The AAT looked at the legislation (s46) but agreed with the original interpretation. Also looked at the facts afresh, but no real disagreement over the facts. Came to same conclusion, and AFFIRMED the original decision (but made virtually no reference to the original decision under review; made its own FRESH decision). 19 Judicial review of Commonwealth decisions: Commonwealth Constitution makes express provision for “an entrenched minimum” of judicial review. In All matters (s75(v) of the Constitution): (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; The High Court shall have original jurisdiction. 20 S17 Supreme Court Act (SA), can conduct judicial review as part of the “inherent” jurisdiction of the Supreme Court, and grant “orders in the nature of” the prerogative writs. Procedure is controlled by the Rules of Courts. It is also possible to launch an action for declarations and/or injunctions in the Supreme Court‟s equitable jurisdiction. A number of important SA admin cases have actually been framed in this fashion… 21 S75(v) of the Constitution 22 S39B Judiciary Act 23 AD(JR) Act 24 Australian Broadcasting Tribunal v Bond [1990], ABT made a series of factual findings regarding Mr. Bond‟s behavior. Inferred he would not be a fit and proper person to hold a broadcasting license. Mr Bond sought to challenge these decisions in the Federal Court. 25 AD(JR) Act s3 26 ANU v Burns (1982): Facts are, Professor at ANU (Canberra), Court held decision to appoint Mr. Burns would be reviewable, because it was conferred to the University by Statute. However, once he was employed he was employed under contract. Once in contract, decision to dismiss Mr. Burns would be under that Contract. Therefore, a remedy would be under Contract Law. 27 General Newspapers (1993): Federal Court decision which involved a decision by Telstra to void a contract for a printing of the Yellow Pages. Following ANU v Burns, you would say that is a decision to enter a contract, therefore reviewable. However, Federal Court said NO; not reviewable. Even though there was statutory power to enter into contracts; entering into contracts was within normal contract law. 28 Griffith University v Tang [2005]: Facts are, involved decision to dismiss a PhD student on grounds on alleged misconduct. Decision made in Queensland; review sought under Queensland Judicial Review Act (almost identical to Commonwealth Act). High Court , decision was NOT reviewable.
29 Neat Domestic Trading: Involving AWBI, one part of privatized Australian Wheat Board. AWBI was granted a statutory monopoly for exporting wheat from Australia. If you wanted to export wheat, you would have to seek the public authority permission. Legislation was written in such a way
public authority couldn‟t grant licenses without authority of AWBI. This was challenged in High Court. Said that AWBI was a private corporation, under Corporations Act, therefore not a decision made under an enactment. 30 Supreme Court Act (1935), s17 31 CCSU Case, House of Lords 1985: Facts are, Margaret Thatcher issued an “order in council”, made under Prerogative Power, banning union membership amongst employees at GCHQ, a “secret” spy listening station in the UK. Union claimed denial of procedural fairness. House of Lords, Lord Diplock said, no automatic immunity merely because decision was made in exercise of Prerogative Power. However, subject matter, defense and national security, rendered the issue UNFIT for judicial review (so STILL non-justiciable; not merely because of being a prerogative power, but subject matter.) 32 CCSU Case, House of Lords 1985: Facts are, Margaret Thatcher issued an “order in council”, made under Prerogative Power, banning union membership amongst employees at GCHQ, a “secret” spy listening station in the UK. Union claimed denial of procedural fairness. House of Lords, Lord Diplock said, no automatic immunity merely because decision was made in exercise of Prerogative Power. However, subject matter, defense and national security, rendered the issue UNFIT for judicial review (so STILL non-justiciable; not merely because of being a prerogative power, but subject matter.) 33 Peko-Wallsend (1987) 34 SA v O’Shea (1987) 35 “The Cabinet being essentially a political organization not specifically referred to in the Constitution and not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational manner are political ones with the consequence that it would be inappropriate for the court to interfere with what it does” (Sheppard J in Peko-Wallsend [1987]). 36 R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Abbasi [2003] 37 Mason J in R v Toohey (1981), “The statutory discretion is in so many instances readily susceptible to judicial review for a variety of reasons. Its exercise very often affects the rights of the citizen; there may be a duty to exercise the discretion one way or another; the discretion may be precisely limited in scope; it may be conferred for a specific or an ascertainable purpose; and it will be exercisable by reference to criteria or considerations express or implied. The prerogative powers lack some or all of these characteristics. Moreover, they are in some instances by reason of their very nature not susceptible of judicial review.” 38 Australian Conservative Foundation v Commonwealth (1980): Facts are, there was going to be a tourist development in Queensland. The Australian Conservative Foundation sought declarations and an injunction, on the basis that EIS procedures associated with a development had not been compiled with. High Court stated ACF lost on the basis of having “no standing”. Gibbs J, standing requires that the plaintiff have a “special interest in the subject matter of the action; an ordinary member of the public, who only shares the interest of every other member of the public in seeing that the law if upheld, does not have standing; a special interest is not a ‘mere intellectual or emotional concern’. 39 Onus v Alcoa (1981): Facts are, Aboriginal custodians (with ties with that area) concerned that the construction of an aluminum smelter would damage relics. Court found, this amounted to more than an intellectual or emotional concern. 40 Ogle v Strickland (1987): Facts are, two Priests had standing based on their vocational interests to challenge a decision of the Censorship Board regarding the classification of a film, which they found “blasphemous”. Federal Court said they had standing, because they were Priests, where a part of their job was to repel blasphemy.
41 ACF v Min Resources (1989): Ten years later, ACF had standing regarding decision related to logging within the “National Estate” (in a not
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dissimilar matter). Davies J said distinctive because “10 years later”… more people care about the environment… WTF??? “Time has passed” upsets the doctrine of precedence. 42 US Tobacco v AFCO: US Tobacco was challenging ban. AFCO were entitled on the basis of involvement in statutory process. 43 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995): Union representing its members had standing to challenge a decision regarding Sunday retail trading; „The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.‟ 44 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited (1998) 45 Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 46 R v Commissioners of Customs exp Cooke [1970] 1 All ER 1068 and R v Salisbury Corp, exp Burns Philip (1986) 47 Sinclair v Mining Warden at Maryborough (1975); and ABT v Bond 48 ADJR s5(3) 49 Hope v Bathurst City Council [1980] 50 Collector of Customers v Pozzolanic Enterprises Pty Ltd 51 Collector of Customs v Agfa-Gevaert Ltd 52 Glass JA in Azzopardi 53 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 54 Enfield v Dev Assessment Commission (2000) per Gaudron J: “Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive … powers exercise them only in accordance with the laws … it follows that there is very little scope for the notion of judicial deference with respect to findings by an administrative body of jurisdictional facts.” Courts can receive new evidence related to a jurisdictional fact, but are likely to accord substantial weight to a tribunal‟s findings where the evidence before both is substantially the same. 55 R v Connell (1944): Considered the meaning of a regulation which gave power to alter remuneration rates only „where satisfied’ that the existing rates were anomalous. High Court held, it was insufficient for the Decision Maker to merely hold this opinion, MORE was required. “Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which can be formed by a reasonable man who correctly understanding the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.” 56 McKinnon v Treasury [2006]: Federal Treasurer empowered to issue a “conclusive certificates” effectively blocking Freedom of Information requests where he believed „on reasonable grounds‟ that the release of the requested documents would not be in the public interest. High Court (especially Gleeson & Kirby) spelt out in more detail what it means to have “reasonable grounds”, using a “global approach” (all facts and circumstances when making a “reasonable” consideration). 57 Gibbs CJ in Buck v Bavone (1976), “Where the matter of which an authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred … or that its decision could not reasonably have been reached. In such cases, the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.” 58 Liversidge v Anderson [1942]: Facts are, Liversidge was locked up on the basis he was a German living in Britain, “reasonably suspected”. Liversidge was detained in 1940 & commenced an action for false imprisonment on the basis that his detention was unlawful. Lord MacMillan said: “Is the standard of reasonableness which must be satisfied an impersonal standard independent of the Secretary of State’s own mind, or is it the personal
standard of what the Secretary of State himself deems reasonable?” If the former, open to judicial review, and the facts upon which the Secretary relied on must be disclosed to the Court. If the latter, “it is for the Secretary of State alone to decide in the forum of his own conscience whether he has reasonable cause of belief, and he cannot, if he acted in good faith, be called on to disclose to anyone the facts and circumstances which have induced his belief.” Majority of the House of Lords held the latter test applied. 59 Project Blue Sky v ABA [1998]: Facts are, Project Blue Sky was a NZ Broadcasting Company which had the object of “encouraging the profitability of the NZ film and TV industry”. It challenged the Australian Broadcasting Authority‟s imposition of the “Australian Content Standards” on TV which restricted Blue Sky‟s access to the Australian TV market. Argued this was in breach of FTA between Australia and NZ, Court agreed with this, and that the statute required compliance. 60 Brennan CJ, distinguished between:
1. A procedural condition which must be satisfied before a power can be exercised
2. A procedural condition which directs the manner of the exercise of the power, and must be followed
3. A procedural condition which requires something to be done before the power is exercised but for which non-compliance does not invalidate the exercise of the power
61 Anamunthodo: Gentleman charged with breach of Union rules. He went to a hearing; the hearing needed to be reconvened (he did not attend re-convened hearing), but in absence, they brought other penalty. Breach of the notice requirement 62 Ex parte Polemis: Involved ship discharging oil, due to sail very afternoon in high tide; dragged off the Magistrate Court immediately. Judicial Review court said, insufficient time to prepare case in response to charges. 63 See Brennan J in Kioa v West [1985], “in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavor to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious…” 64 Chen Zhen Zi (1994) 65 O’Sullivan v Repatriation Comm [2003], cross-examination of the applicant before the AAT was directed to securing his agreement to the proposition that he had received no income whatsoever from his practice as a barrister in what the cross-examiner wrongly assumed was the 1998-1999 year. The applicant (who was then aged 79) became confused and distressed at what appeared to be a failure on his part to include in the tax return any income or expenses referable to his practice as a barrister. This led the applicant to request an opportunity to examine his own records in Canberra in order to explain the apparent omissions rebut the allegation. Tribunal member did not grant an adjournment and delivered an ex tempore judgment. HELD, this was a breach of procedural fairness. 66 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005), initial hearing in 1997/RRT hearing in 1998 and again in 2001. Decision in 2003, based upon credibility. Per Gleeson CJ, Kirby J agreeing, the delay created a real and substantial risk that the Tribunal‟s capacity to assess the applicants‟ evidence and evaluate their claims was impaired, so that the applicants were denied a fair hearing. Per Callinan and Heydon JJ, procedural unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. The applicants‟ demeanor and credibility were relevant to the Tribunal‟s decision. The Tribunal had deprived itself of its capacity to assess their oral evidence.
67 NCSC v Newscorp (High Court, 1984), facts are, NCSC investigating Newscorp regarding unauthorized share transactions. Newscorp said
they were denied procedural fairness, since lawyers wanted to see people giving tip-off‟s, and turn it into court proceeding. High Court said NO, this is a decision WHETHER to proceed with charges or not. 68 White v Ryde Municipal Council, facts are, White kept 30 cats in his property, neighbor didn‟t like it, Council asked White to get rid of all except two. He challenged at meeting, refused to bring a lawyer. White needs to argue he needed a lawyer. He couldn‟t argue this, because having a lawyer there can interpret statutes, cases, cross-examine people, none of these skills needed 69 O’Rourke v Miller, facts are, Police Cadets in Victoria graduating, used Police badges to gain entry into good looking girls at shop. What happened subsequently is unclear, but one woman made a complaint to the Police Commissioner. Result was both dismissed. They challenged that decision, all the way to the High Court, saying they should have had right to cross-examine witness. High Court said no need to since there was no reason why they made up stuff. 70 Mason CJ in Kioa v West [1985], “a common law duty to act fairly … in the making of administrative decisions which affects rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intent…” Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. 71 Minister of State for Immigration Ethnic Affairs v Ah Hin Teoh [1995], also known as Teoh’s case, High Court 1995, involving decision to export Teoh, regarding importing Heroin (he claimed was for his wife). They had seven children, of whom were qualified to remain in Australia. Australia had signed and ratified UN Convention on the Rights of the Child. Article 3: In all decisions concerning children, the best interests of those children will be treated as a primary concern. Merits Review Teoh had been convicted of heroin importation, Minister decided to deport him. 7 children included some Australian citizens. Children’s best interest WERE considered, but NOT treated as primary consideration. High Court found, decision maker had NOT complied with that requirement. 72 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001]: Refugee refused by Refugee Tribunal. He argued Procedural Fairness. Majority held that a comprehensive code for dealing with visa applications did not exclude the common law right to procedural fairness. Provision of full merits review from the decisions? Again, discussed in Miah. Procedural Fairness will also be excluded in Urgency; Emergency powers. Adverse “country information” was not disclosed to applicant for refugee status. At common law, was a clear breach of Procedural Fairness. Minister argued, “code” for making decisions under Migration Act expressed legislative intent, Decision Maker‟s simply had to comply with the procedures in the Act. In any event, Full Merits Review was available to the RRT, displacing any additional Procedural Fairness requirements. 73 Dixon CJ and Webb J said in Commissioner of Police v Tanos (1958)
74 SA v Slipper, Commonwealth Minister wanted to acquire land in SA for a nuclear waste dump. SA said it would declare the land to be a public park. S42 of the Commonwealth Lands Acquisition Act prevented the compulsory acquisition of a public park without the SA‟s consent. Before SA could act, the Commonwealth Minister expedited the acquisition by certifying under S24(1)(a) that there was “an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed” by the usually notification and review processes. Without affording SA an opportunity to be heard in relation to the decision, the Minister then declared that the land was compulsorily acquired under s41 of the
© 2009 Jeremy Shum 6
Act. Held, the Minister‟s desire to avoid the operation of S42 of the Act is not a factor that constitutes “an urgent necessity for the acquisition”. Therefore, could not avoid the procedural requirements of notice and review. 75 The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of the circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected by told what is alleged against him. (UK House of Lords, Sec for Home Department v AF) 76 Gypsy Jokers Motorcycle Club v Comm of Police (WA) [2008]: „Anti-fortification‟ notices were issued 77 K-Generation v Liquor Licensing Court (SA) [2009]: Applications for liquor licenses were denied. In each case, the relevant Police Commissioner certified that information was “criminal intelligence” which must not be disclosed to the adversely affected person. High Court UPHELD both decisions. 78 Dr Bonham’s Case (1610), decision of the Royal College of Physicians, to convict, imprison and fine a Dr Bonham, for practicing medicine without a license. The fine was collected and kept by the College. The problem is decision-maker took the fine money. Basic principle: A person should not determine a matter in which they have an interest, should not be both a judge and an interested party. 79 Minister for Immigration v Jia Legeng [2001]: Claimed bias on part of Ruddock. Alleged statements to show bias were when he was interviewed on talkback radio. It was said ministers need to do this. Gleeson CJ and Gummow J, emphasized the multifaceted role of the Minister, “functions in the arena of public debate, political controversy, and democratic accountability”. “At the same time, the Minister’s exercise of statutory power is subject to the rule of law, and the form of accountability which that entails”. 80 Minister for Immigration v Jia Legeng [2001] 81 Livesey v NSW Bar Association (1983) 82 Ebner v Official Trustee in Bankruptcy [2000] 83 Deane J in Webb (1994) 84 Dimes v Grand Junction Canal (1852), Lord Chancellor made decision in favor of company in which he owned shares. Held, irrebuttable presumption of bias. 85 Australia moves to the “reasonable apprehension” test: Ebner v Official Trustee in Bankruptcy [2000], judge with shares in bank which was a party to proceedings, bank was liquidating… It WAS automatic disqualification, but High Court said unrealistic, since EVERYBODY has shares these days. 86 Pinochet (No 2) [2000], Lord Hoffman was unpaid Director & Chairman of an Amnesty International charity. Amnesty had intervened in proceedings in relation to extradition of Pinochet. Lord Hoffman part of 3:2 majority. Held, Lord Hoffman was sufficiently connected to Amnesty that should be DISQUALIFIED when Amnesty was a PARTY to the proceedings. 87 Kaycliff v ABT (1989): Investigation of group of companies owned by Christopher (media magnate), by the ABT, chair of woman was woman… her husband expressed a view on the case well before matter is concluded. The view is, husband is expressing views of wife, and it shows prejudgment on her behalf. Court said NO, you can‟t attribute statements of husband to wife. 88 Smits v Roach [2006], judges brother was Chairman of Partners at Freehills law firm, indirectly concerned with proceedings. High Court thought UNREASONABLE. 89 Ex parte Ciccone [1973], magistrate travelled to a “view” of the scene with lawyers for one party (in their car). INAPPROPRIATE! 90 Re JRL; ex parte CJL (1986), Family Court Judge met in chambers with counselor who was a witness. INAPPROPRIATE!
91 Webb v R (1994), murder trial in Mt Gambier; juror sent flowers to mother of victim; trial judge did not discharge the jury; HC held that any apprehension of bias was overcome (SO NO BIAS) through the detailed summing up of the judge. 92 Stollery v Greyhound Racing Control Board (1972), nomination forms for dogs came with $200 in envelope, a “wedding present” to Mr Smith? Mr Smith reported to board; but he stayed in boardroom during determination of matter. This gave rose to an apprehensive bias. 93 Damjanovic v Sharpe & Hume [2001]: NSW District Court judge persistently critical of and rude to party and interrupting them … then decided against them on credibility grounds. Ruled there was apprehension of bias 94 Vakauta v Kelly [1989]: Insurance litigation with professional witness. Trial judges talked about medical witness, the “unholy trinity”, always believing you can do a full day‟s work on an arm and leg. He was probably right, but the High Court said he should have been quite about this; and looked more at individual facts, rather than discarding them altogether. 95 Livesey v NSW Bar Association (1983), barrister and law student went to see criminal and bailed him out, using money they said was theirs, but wasn‟t, it was from the family. NSW Court of Appeal disqualified barrister, then subsequently 2 of 3 Court of Appeal disqualified law student. Court said unable to do that, since they had already expressed their views in a closely related matter. 96 Laws v Australian Broadcasting Tribunal [1990]. If entire ABT board was found to be biased, the decision STILL needs to be made. 97 Vakauta v Kelly [1989], “Where [a comment by a judge gives rise to an impression of bias] a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then .. Attack the judgment on the ground that … there was a failure to observe the requirement of the appearance of impartial judgment.” 98 Smits v Roach, judge presented draft judgment to parties for purpose of resolving issues of confidentiality. At this point, suggestion of apprehension of bias raised. Held by the High Court that it had been waived. 99 Padfield v Minister of Agriculture [1968] 100 ADJR Act: ss 5(2)(c) and 6(2)(c): „an exercise of a power for a purpose other than the purpose for which the power is conferred‟. 101 Samrein v Metropolitan Water Sewerage & Drainage Board (1982) 102 Woollahra MC (1991): Decision made to grant licenses/leases to run a private university within a National Park. Under s151(1)(f), may grant licenses to occupy or use lands within NP; Under S152(1), may grant licenses to carry on trades, businesses or occupations within NP. The Act did NOT expressly state its purpose (or purposes). The powers to grant leases and licenses were limited to actions taken for the purposes of the preservation and protection of NP‟s – and matters related to that… There was nothing untoward in the intent of the decision makers. They saw an opportunity to get rundown buildings restored at no public expense and bring in income which could then be used for other (legitimate) purposes. Hence – there was no moral wrong doing. The problem was simply that their powers under the Act – as interpreted by the Court – did not extend to acting for these purposes. Their purposes were not authorized by the statutory scheme. 103 Padfield v Minister for Agriculture, Fisheries and Food [1968], ministerial refusal to refer a politically embarrassing complaint (regarding a milk marketing scheme) for investigation by a committee. Authority that decisions by Ministers is reviewable 104 NAALAS v Bradley: 2 year limited term appointment of Chief Magistrate in NT, claim of IP, weakening independence, found facts/evidence couldn’t support possible ‘political purpose’.
105 MC Sydney v Campbell [1925]: Power under relevant legislation to acquire land under Sydney Council area. Acquired Martin Square (in city), and also in surrounding areas (to gain more $$$).
Decision was invalidated under improper purpose (i.e. power not conferred to gain $$$). 106 R v Toohey (1981): Land claim in area surrounding Darwin, with relevant legislation providing whilst aboriginal people could make land claim; couldn’t claim land apart of township. Government thus declared “town land” (therefore exempt). However, it was 25x larger than Darwin. Thus, improper purpose. 107 Murphyores Inc Pty Ltd v Commonwealth (1976): Grant to conduct sand mining in Fraser Island. Environmental considerations not irrelevant to exercise of BROAD DISCRETION to grant export license 108 R v ABT; exp 2HD: Broad “public interest” discretion, media concentration not irrelevant 109 Padfield: Also an unconfined discretion but possible political embarrassment WAS irrelevant 110 Edelsten v Wilcox: Dr. Edelsten was a medical entrepreneur, who was ordered ATO lot of money. Because Medibank was paying him, the ATO asked the Medibank to pay them. Federal Court found two relevant considerations: (1) 95% or 100% of income; and (2) ongoing dispute regarding whether he really owed the money. 111 Phosphate Mining v EPA (1978): Decision made to grant under EPA (license to pollute), got it, but had heavy conditions, which made it unattractive. Argued should have considered more than environmental (but also economic) factors. High Court said NO, they arrived at the conclusion from looking at the legislation. 112 R v Hunt; ex parte Sean Investments (1979) 113 Peko-Wallsend (1986) 114 Minister for the Environment and Heritage v QLD Conservation Council [2004]: Minister approved the Nathan dam in QLD. Opposition based on concerns regarding downstream effects. Minister considered only DIRECT environmental effects of the dam approval. QCC argued that INDIRECT environmental consequences were also “relevant considerations” and should have been taken into account. s75(2) of the Cth EPBC Act stated Minister is required to consider “ALL ADVERSE IMPACTS” of a decision. Minister DID consider impacts upon threatened species. He DID NOT consider impacts upon world heritage area. He considered that these (although foreseeable) were too remote or indirect. What does “impact” mean? COURT DISAGREED, “Impact” in its ordinary meaning can readily include the “indirect” consequences of an action and may include the results of acts done by persons other than the principal actor. “Impact” in this sense is not confined to direct physical effects of the action. It includes effects which are sufficiently close to the action to allow it to be said… that they are, or would be, the consequences of the action on the protected matter. 115 ACF v Forestry Commission (1988): Decisions regarding where logging could be done (and where prohibited). Silence does not prove non-consideration, in the context of many decisions regarding possible heritage listing of forests 116 AD(JR) Act ss5(2)(g) & 6(2)(g) 117 Wednesbury case per Lord Greene 118 Parramatta City Council v Pestell (1972) 119 R v Barnsley Corp; ex parte Hook [1976] 120 Prasad v Min Immigration and Ethnic Affairs (1985) 121 Chan Yee Kin v Minister for Immigration (1989) 122 Entick v Carrington (1765), Government must have a source of power for its actions 123 Hamdi v Rumsfeld (2004): U.S. Supreme Court which said that unlimited detention of U.S. citizen has no source of authority 124 Hamdan v Rumsfeld (2006): Commission to trial people, must have authority to do it 125 Ruddock v Vadarlis [2001]: Held no power in Migration Act to do so; later, full federal court found extrinsic power in Constitution to do so, though 126 AD(JR) Act, ss 5(1)(d) and 6(1)(d) which provide that review is available … „where a decision was not authorized by the enactment in pursuance of which it was purported to be made‟.
© 2009 Jeremy Shum 7
127 ADJR Act. ss 5(1)(b) and 6(1)(b) provide for review on the grounds that ‘the procedures that were required by law to be observed in connection with the making of the decision were not observed’. 128 Carltona [1943] 129 Peko-Wallsend 130 Roncarelli v Duplessis: Restaurant owner dispute with Premier, Premier said do not give license. Very improper 131 ADC v Hand (1998) 132 Nemer v Holloway (2003): Acting A-G stepped into case, and directed DPP to appeal. Found A-G action was legitimate. 133 NSW Aboriginal Legal Service v Min (1996): Allegations of misuse of public funds, so Minister stated had to go through special auditor for suitability. Successful, held that Minister went too far, giving auditor “veto”, 134 ADJR ACT ss 5(2)(e) & (6)(2)(e) 135 British Oxygen Co Ltd v Minister of Technology [1971] AC 610 136 Green v Daniels: School leaver, where Green (age 16) finished year 11, and go on the dole, then later wanted to go back to school. Social security developed policy, that school leaver would not qualify for unemployment effects, until after 12 weeks. Policy inconsistent with statute 137 Thornton v Repatriation Commission (1981) 138 Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 139 Anisminic v FCC- House of Lords (1969): Decision by FCC as to whether a particular corporation qualified to make a claim against a compensation fund. FCC was clearly deciding the matter entrusted to it by Statute. Made a clear and serious error in interpreting the statute, and denied the plaintiff’s claim. Lord Reid expanded jurisdictional error to include (at least): Failure to observe the rules of natural justice; the presence of bad faith; misconstruction of the statutory power (“asking the wrong question”); consideration of irrelevant matters; the failure to take account of relevant matters required to be taken into account. 140 AD(JR) Act Section 5(1)(f) and 6(1)(f) 141 Craig v South Australia (1995): Hearing in SA District court, larceny charges. Craig made a “Dietrich” application, that his trial should be stayed as he was unrepresented “through no fault of his own”. Application granted by trial judge. Crown disagreed with Trial Judge’s interpretation of the Dietrich test: but had no statutory appeal rights in CLCA, so sought judicial review. High Court did not finally decide if district court judge had made an error of law. But held that in any event, it would NOT be a JURSDICTIONAL error. Strong distinction between approach to decisions of inferior courts and decisions of tribunals. INFERIOR COURTS, many errors of law will not go to jurisdiction. TRIBUNALS, errors of law will usually be “jurisdictional”. 142 Craig v WCT found that Workers Compensation Tribunal is a “court”, not a tribunal 143 In SA, at least the following are inferior courts: District Court, Magistrates Court; SA Workers Compensation TRIBUNAL; ERDC; Industrial Relations Court; Youth Court, Licensing Court… Other possibilities including the Coroners Court and Wardens Court. 144 R v Coldham (1983) (High Court): “Subject to this Act, an award (including an award made on appeal) – (a) is final and conclusive; (b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus or injunction in any court on any account”. Eventually, prohibition and mandamus were granted. 145 S75(5) of the Constitution 146 R v Hickman; ex parte Fox & Clinton (1945): A local reference board had power to settle disputes in relation to the COAL MINING INDUSTRY. A strong privative clause attempted to exclude judicial review of LRB decisions. The plaintiffs operated trucks which hauled coal from the mines. An award was made in relation to their drivers by the LRD. They argued (successfully) that they were in the TRANSPORT industry, and NOT the coal mining industry. The result in Hickman: This
was NOT a decision in relation to a dispute in the coal mining industry. Thus, the necessary jurisdictional fact was lacking. The Hickman provisos were NOT satisfied. The privative clause did NOT protect the decision from judicial review. 147 Plaintiff S157/2002 v Commonwealth (2003): Privative clause inserted into the Migration Act (s474). High Court rejected Hickman and offered a new approach to privative clauses. The S157 clause: (1) A privative clause decision: (a) is FINAL AND CONCLUSIVE; and (b) MUST NOT BE CHALLENGED, APPEALED AGAINST, REVIEWED, QUASHED OR CALLED IN QUESTION IN ANY COURT; and (c) IS NOT SUBJECT TO PROHIBITION, MANDAMUS, INJUNCTION, DECLARATION OR CERTIORARI IN ANY COURT ON ANY ACCOUNT. (Section 2 defined privative clause decisions, this covered a majority of decisions made under the Act). The result in S157: Was the clause invalid? NO. But, SUBSTANTIALLY, read down fro constitutional reasons, as only applying to “decisions” made “under the Act” (validly). “PURPORTED DECISIONS”, infected by jurisdictional error, were NOT protected by the privative clause. SO, the clause could not prevent review of any JURISDICTIONAL errors, which included denial of procedural fairness. The High Court in S157: It’s all a process of statutory interpretation, Gleeson CJ refers to a range of these principles. Hickman theory expressly rejected. A review court must “reconcile” the privative clause with provisions found elsewhere in the statute to determine the “inviolable limits and imperative duties”. 148 Darling Casino (1997): Gaudron and Gummow JJ, if sufficiently clear privative clause may “preclude review for errors of any kind”… “the decision in question is entirely beyond review so long as it satisfies the Hickman principle”. 149 Mitchforce v Industrial Relations Commission (NSW) [2003], NSW Court of Appeal: S106 conferred jurisdiction to remedy unfair contracts in relation to a “contract whereby a person performs work in any industry”. NSW IRC had made a series of decisions with a very broad view of this jurisdiction, in this case a commercial lease. S179 was a privative clause “in the widest terms”, it excluded review of even “PURPORTED decisions”. The outcome: Majority (Spigelman CJ and Mason P), held that IRC lacked a jurisdictional fact, and had made a “jurisdictional” error. Despite this, held that S179 (privative clause) protected even that “jurisdictional” error from review. Even some “purported” decisions were protected from review by S179. But see Batterham v QSR [2006], “ref to purported decisions inserted for more abundant caution…” (i.e., it makes no real difference) 150 Tsimpinos v Allianz [2004]; Craig v Workers Compensation Tribunal [2004]: Craig argued that he had been denied procedural fairness (court agreed), and hence the WCT had exceeded its jurisdiction. Held (Doyle CJ, Perry J and Sulan J agreeing), procedural fairness denied, and hence relevant matter not considered. This was a “failure to exercise jurisdiction”, NOT an excess of jurisdiction. WCT was required to act fairly, BUT WCT was a COURT and procedural fairness was NOT a jurisdictional error for a court. S157 was distinguished on this basis. 151 McGee v Gilchrist-Humphrey [2005]: McGee sought declaration that privilege against self incrimination was not abrogated by Royal Commissions Act 1917. S9, “No decision, determination, certificate, or any other act or proceeding of the commission, or anything done, or the omission of anything, or anything done or omitted to be done, by the commission, shall, in any manner whatsoever, be questioned or reviewed, or be restrained or removed by prohibition, injunction, certiorari, or otherwise howsoever.” HELD (Doyle CJ), S157 applied, DECLARATION WAS available despite S9, not expressly listed amongst the excluded remedies.

You can download the leaked material here:

• Jeremy Shum – Administrative Law CHEAT SHEET
• Jeremy Shum – Immigration & Refugee Law CHEAT SHEET
• Jeremy Shum – Law of Torts 2 CHEAT SHEET

Try to distribute it asap before it gets put offline

It’s official everybody.  I’m a cheat!

The great thing though, is that this is perfectly legitimate for studies in law =)  Which is great because my memory, is, well… let’s just say, it’s not much better than Ashlee Simpson’s!

Sorry Ashlee =(  What am I thinking, insulting a beloved sister in Christ!  Especially since her dad is a youth pastor.  **Slaps himself**

Anywho, thought I’d share my tactics in studying law with the world:

I have thought of introducing a law of my own though.

The law of love.

Awwwhh.

een Nederlandse handleiding op wave  zelf:  https://wave.google.com/wave/#restored:wave:googlewave.com!w%2BxpkY5mbgC

Found via cheat sheet http://www.theshinywave.com [other people have copied this without properly explaning the source.] These guys are right into the wave and how you can make use of it either in business, schools, college or as an individual.

Search Cheat Sheet
This is a quick guide to the operators and restricts supported by wave search.
Keywords
about:[keyword] — finds waves which have [keyword] occurring anywhere. Same as [keyword].
title:[keyword] — finds waves which have [keyword] in the title.
caption:[keyword] — finds waves which have an attachment where [keyword] occurs in the caption.
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Status
is:read — finds all read waves.
is:unread — finds all unread waves.
Note: you cannot currently do a search like “-is:read” by itself and get reliable results due to an outstanding restriction on megastore queries
is:mute — finds all muted waves.
is:unmute — finds all waves not muted
is:active — currently the same as is:unread.
is:note — finds all waves which have you as the only participant and contributor
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Participants
from:[address] — finds waves from the participant identified by the address. Special case of from:me identifying waves from yourself.
by:[address] — same as from:[address].
to:[address] — find waves which are a dialogue between you and the participant identified by the address.
with:[address] — find waves that have the participant identified by the given address explicitly listed.
owner:[address] — find waves by person, that they created.
only:[address] — finds waves to which only the participant specified by the given address contributed.
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Date Search
Currently, there are a few restricts:
past:[date term] — finds all waves in the last period.
previous:[date term] — finds all waves in the period before the last period.
before:[date term] — finds all waves before a certain period.
after:[date term] — finds all waves after a certain period.
which can be combined with date terms:
day
week
month
year
So you can have past:week, past:year. There is also support for
past:N[date term] where N > 0. So you can have past:3days (today, yesterday, the day before yesterday).
Also you can have
past:Ndays
past:Nweeks
past:Nmonths
past:Nyears
Finally, you can abbreviate days, weeks, months and years to a single letter (d, w, m, y). Thus you can write
past:3d
past:2w
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Folders
in:[folder name] — find waves in the folder with the given name. For example, in:inbox.
in:[search name] — find waves in the saved search with the given name.
is:unfiled — find waves which have not been moved to a user folder.
is:filed — find waves which belong to some user folder.
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Attachments
has:attachment — finds waves with an attachment. This changed from “is:image”.
has:document — finds waves with an attachment which is a document. (coming soon)
has:image — finds waves with an attachments which is an image. (coming soon)
caption:[keyword] — finds waves with an attachment with caption containing [keyword].
filename:[keyword] — finds waves with an attachment with filename containing [keyword]. (coming soon)
mimetype:[keyword] — finds waves with an attachment with mimetype containing [keyword]. (coming soon)
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Tags
tag:[tag name] — finds waves with the tag [tag name].
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Gadgets
has:gadget — finds waves which contain a gadget.
gadget:[keyword] — finds waves which contain a gadget with name containing keywords. e.g. chess, fridge, map, risk, sokoban.
gadgeturl:[keyword] — finds waves which contain a gadget with urls containing keyword.
gadgettitle:[keyword] — finds waves which contain a gadget with a title containing keywords.
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Expressions
foo & bar — match waves with foo and bar.
You can use AND, or skip the operator altogether, as the logical and is the default.
foo | bar — match waves with foo or bar (or both).
foo OR bar — match waves with foo or bar (or both).
-foo — match waves that do not contain foo. (There is an outstanding bug that causes searches with only negative terms to fail. To get around it, use to:me -foo)
“foo … bar” — matches waves that contain the exact phrase “foo … bar” (There is an outstanding bug for live search not working with phrases)
foo & (bar | -baz) — matches waves that contain foo and either bar or do not contain baz.
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Phrases
“[multiple terms]” — match waves with one or more terms in sequence:
“hot dog” catches waves with the terms hot and dog in sequence. This is also required for other operators such as in:”new inbox” where say “new inbox” is a saved search.
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XML Search
tags:subtag — find all waves which have this combination.
tag:[tag] — find all waves which have this .
attribute:[value keyword] — finds all waves which have < …. attribute=value …> where keyword is a token in value.
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Wave ID
id:”” — find a wave with a specific wave id.
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Zero Inbox
If you want to zero inbox, you can hack this temporarily by saving a search “my inbox” with the query:
in:inbox is:unread this:week. You can then use the menu option “Mark as read” in the wave panel.
Alternative zero inbox: in:inbox is:unread past:7days -is:mail
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Saved Searches
A search can be saved using one of two methods:
Create a search in the search box and then press the Save search button at the bottom of the Digest panel.
Add a search using the searches Add button on the Navigation panel. Then add the search query and name of the search in the Saved Search popup panel.
Saved searches can be edited and managed using the pop-up menu which shows when hovering over the saved search in the searches section of the Navigation panel.
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Filters
Filters are saved searches which also have an action to apply to all waves which match the saved search. The actions supported are
skip inbox – removes the wave from inbox. Whilst this wave continues to match the search, it will continue to stay out of the inbox. Skip inbox will shortly be renamed archive.
mark as read – Whilst the wave continues to match the search, it will be marked as read.
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Folders
You can add a folder by using the Add button on the folders section of the Navigation panel. A folder is added by typing the folder name in the text box given and hitting enter.
Folders can be managed using the pop-up menu that shows when hovering over the folder on the Navigation panel.
Add folder – A subfolder can be added under the current folder.
Rename – rename the current folder.
Delete – delete the current folder.
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Language Filter
Much thanks to Geoffrey Spear for the help and insight:
The problem is that these tags aren’t exclusive; if a Wave has any English in it at all it will show up under “lang:en” even if it’s mostly in another language. This is particularly a problem since the search terms themselves are all English so a Wave in, say, Portuguese about using Wave will tell people they need to use “with:whatever” and the system will see “with”, an English word and suddenly the Wave is in both lang:en and lang:pt.
“group:public@a.gwave.com lang:en -lang:es -lang:fi -lang:hu -lang:pt -lang:nl -lang:ja -lang:he -lang:fr -lang:ru -lang:sv -lang:zh -lang:de -lang:no -lang:da”
… is fairly effective, although you basically need to keep adding more as you find Waves not in one of these languages. Not a really good solution

Check out this blog - Google Wave Cheat Sheet. Lots of interesting commands that can be used with the new Google Wave technology.

1. Jimmie Johnson- In the 5 COT Phoenix races Jimmie Johnson has won all of them except for the first race and the most recent one. The worst Johnson has ever finished in a COT at Phoenix is 4th. His COT average finish is 2.2. Johnson’s led nearly 400 COT laps at Phoenix and he’s consistently a front-runner in the desert.

2. Denny Hamlin- My Denny Hamlin basic rule of thumb for knowing how to use him fantasy wise is “If’s it flat or short use Hamlin”. Phoenix is both flat and short so expect good things out of Hamlin Sunday. Hamlin’s COT average finish is an impressive 6.6 and he’s also led the second most COT laps at Phoenix (225).

3. Mark Martin- Martin won at Phoenix earlier this year and he backed up his flat track prowess at New Hampshire. Martin also nearly won last year at Phoenix in a part-time DEI ride which I find very impressive.

4. Tony Stewart- Tony Stewart was the runner-up in the spring race at Phoenix. Stewart has an impressive 8.8 average finish (COT), and more importantly he has nothing to lose by running hard.

5. Kurt Busch- Kurt is coming off his Texas win and Phoenix is one of his better tracks. Last fall Kurt Busch finished 2nd and this spring he finished 3rd. Just like Stewart, Kurt Busch has nothing to lose by running hard.

6. Kyle Busch- Kyle Busch was going to be Mark Martin’s biggest challenger this spring at Phoenix, but unfortunately the 18 car was caught speeding on pit road on their final pit stop. Kyle’s COT average finish at Phoenix is 10.0. Kyle Busch also has one career win here.

7. Dale Earnhardt Jr.- Somethings going to go right for this team soon and it may very well happen at Phoenix. This track has always been friendly to Junior, and he had a top 10 car at New Hampshire until a late crash took him out.
8. Jeff Gordon- Gordon won the first COT race at Phoenix but if you remember back to that race he was pretty lucky the caution came out when it did. Otherwise he certainly wouldn’t have won that race. When you take away that win Gordon only has one other COT top 10 at Phoenix.

9. Juan Pablo Montoya- Montoya was extremely strong at New Hampshire and I think it will carry over to Phoenix. Other than that there isn’t much to report here.

10. Greg Biffle- Biffle has 3 COT top tens at Phoenix and a 8.8 average finish. Last year Biffle won at New Hampshire.

11. Kevin Harvick- RCR is looking better all the time and Phoenix is a Kevin Harvick track. Harvick has 3 COT Phoenix top tens.

12. Carl Edwards- Edwards has had COT success at this track but for whatever reason his performance level is way off this year. Edwards has 2 COT top fives and 3 COT top tens here.

13. Clint Bowyer- Clint Bowyer is a flat track ace. Most of his flat track success has been at New Hampshire, but he’s also not to shabby at Phoenix.

14. Jeff Burton- Burton just like Bowyer and Harvick will be a beneficiary of the continuing rise of RCR. Burton has 2 career wins at Phoenix.

15. Ryan Newman- Newman has a 22.9 average finish at Phoenix. Newman has 3 top tens here and 11 sub top ten finishes. The main thing that really drags down Newman’s finish average is 6 sub 30 finishes.

16. Martin Treux Jr.- In 5 COT phoenix starts Treux has 3 top tens. He’s also led 72 laps over this time span.

17. Matt Kenseth- Kenseth has been pretty bad at similar track lately that it’s really hard to recommend him. The main reason (not only) Kenseth missed the Chase this year is because of how poorly he performed at Richmond (similar track). They couldn’t perform there if there season counted on it.

18. David Reutimann- Reutimann is probably very underrated here. Earlier this year Reutimann finished 8th at Phoenix.

19. Marcos Ambrose- Ambrose finished 14th here earlier this year but at other similar tracks this year he’s been about a 20th place car.

20. Jaime McMurray- McMurray has 1 COT top ten at Phoenix and a 15.4 COT average finish.

click to embiggen

A really cool cheat-sheet if you ever come face to face with any of these.

Link

from the what i wore posts, it’s pretty obvious that you know that my love for colors is deep and unending, like my love for sneezing pandas or oberweis chocolate milkshakes. but i do get it: color is SCARY. and figuring out which colors go with which can be a process that can make you want to rip your hair out and wear black for the rest of your life.

but never fear! i have a handy-dandy list of resources that can help you – yes, you! – conquer your fears and dip your toe into a whole new world of fashion possibilities. and the best part is that these resources are great for a shot of instant inspiration too.

1. pantone
every season, pantone releases a spiffy little booklet of upcoming color trends and how designers will be rockin’ them on the runway. for example, fall 2009’s color report features:

the nifty color report not only shows you some beautiful sketches of next season’s designs, but it also tells you how to pair those colors to create some awesome combinations:

“Pairing Honey Yellow with its color wheel opposite, Purple Heart, will surely add a surprising flair. Or, for a more typical fall combination, group Honey Yellow with Burnt Sienna and Iron.”

want to be ahead of the game? pantone just released its spring 2010 color report… take a gander at the colors featured and start stocking up!

2. colourlovers

have you seen colourlovers? because it is sort of awesome. a whole community of people who love and work with colors in real life post their color palettes, patterns and combos for your viewing pleasure and inspiration. it’s kind of the shit.

3. wear palettes

i place wear palettes firmly in the realm of GENIUS IDEAS. mostly because it’s GENIUS. wear palettes collaborates with lookbook.nu to create color palettes from selected real-life street style photos, so you can see how those colors work together on a real person.

4. your very own fellow cyber fashionistas
speaking of genius and real life, your fellow bloggers can be an endless source of inspiration! the academichics had a comprehensive color series going on that you can see here, and street style sites like weardrobe, the wardrobe remix group on flickr, and lookbook.nu are full of stylish, creative people rockin’ that color combo you never even thought of – never underestimate the power of seeing real people pull off a fantastic outfit!

- – - – - – - – - – - -

so there you have it. i send you off now on your own color journey, with the stipulation that you show me your own fabulous experiments so that YOU can become MY inspiration! what color combos are you rocking this season? what resources do you use to inspire you?

I don’t know about you, but when I hear or see poor grammar, my body convulses and I may as well have nails running down a chalk board right beside my head. I wouldn’t notice as much if I weren’t on Facebook. I’ve always been around people with good grammar and the ability to spell. But, Facebook really does bring out the grammar police in me. You can spot when someone makes a typo here and there. That’s fine, it happens. But, it is obvious who the people are that can’t spell and who also don’t know when to use the correct form of a word. This doesn’t only make you look illiterate, it makes you look down right dumb. People notice these things; they make people look down on you. Being able to speak and write well is a good thing. I wish people would take the time out to learn the things they don’t know, not only to improve themselves, but also so other people won’t be annoyed and appalled by their errors.

If you’re one of those people who need a cheat sheet, here you go. Use it! Others will appreciate it, not to mention you’ll look a lot smarter.

their – “Someone left their bag.”

they’re – contraction for they are. “I don’t know what they’re doing.”

there – this means a place. “Are you going there?”

your – this does not mean you are! “Where is your head?”

you’re – contraction for you are. “You’re great!”

it’s – contraction for it is or it has! “It’s a great day outside.” (it is) “It’s been a bad day.” (it has)

its – no contraction. “The cat carried its kittens.”

where – a location. “Where were you?”

wear – this is all about the clothing! “What shall I wear today?”

to – “I went to the store.”

too – meaning also. “I like the color red, too.”

I will stop here, but of course there are tons more!

Posted by Patience

]]> http://blogtenfootball.com/2009/10/16/blog-ten-cheat-sheet-week-7/ Fri, 16 Oct 2009 17:26:18 +0000 Tom Fornelli http://blogtenfootball.com/2009/10/16/blog-ten-cheat-sheet-week-7/ http://c0li.wordpress.com/2009/10/15/sql-injection-cheat-sheet/ Thu, 15 Oct 2009 11:07:12 +0000 c0li http://c0li.wordpress.com/2009/10/15/sql-injection-cheat-sheet/

SQL Injection Cheat Sheet
http://ferruh.mavituna.com/sql-injection-cheatsheet-oku/

Oracle
http://pentestmonkey.net/blog/oracle-sql-injection-cheat-sheet/

MSSQL
http://pentestmonkey.net/blog/mssql-sql-injection-cheat-sheet/

MySQL
http://pentestmonkey.net/blog/mysql-sql-injection-cheat-sheet/

PostgreSQL
http://pentestmonkey.net/blog/postgres-sql-injection-cheat-sheet/

Ingres
http://pentestmonkey.net/blog/ingres-sql-injection-cheat-sheet/

DB2
http://pentestmonkey.net/blog/db2-sql-injection-cheat-sheet/

Informix
http://pentestmonkey.net/blog/informix-sql-injection-cheat-sheet/

Descarga la chuleta y empieza a posicionar tu sitio

Cuando se habla de posicionamiento en buscadores electrónicos, se mencionan también estas tres letras“S-E-O”. Básicamente estas letras son las iniciales de lo que se conoce en inglés como “Search Engine Optimization”o “Search Engine Optimizer”, que en castellano podrían significar básicamente: optimización para motores de búsqueda.

Descargalo en PDF

Chuleta para consultar en  la creación de un template.

Interesante tener a mano una ayudita a la hora del desarrollo de un sitio dinámico en este fabuloso CMS

Basic Template Files
1. Index.php .
2. Template Detail.xml.
3. Template Thumbnail.
4. Template_css.css.
5. Images[Folder].
PHP Snippets for Index.php
1. <?php mosShowHead();?>                            ->Request Head Tags
2. <?php mosConfig_Sitename ?>                  ->Request Site Name
3. <?php mosConfig_live_site?>                     ->Request URL of the site
4. <?php init Editor(); ?>                                     ->Loads WYSIWYG Editor for user
5. <?php endif(); ?>                                                ->Closes a function
JDoc Statement
1. <jdoc:include type=”head“/>                     ->Output head section in the webpage.
2. <jdoc:include type=”component“/>        ->Output Components used .
3. <jdoc:include type=”Installation“/>        ->Install included files.
4. <jdoc:include type=”message“/>              ->Display message in the webpage.
5. <jdoc:include type=”module“/>                ->Include module on the webpage.
Module Postion
<?php mosLoadModule (’position’); ?>         ->Helps to load position of the modules.
I hope this ” Joomla Template Cheat sheet ” helped you!.This sheet help only for beginners in case
if you need to develop advance template you need to refer this API.
http://weborbus.com/joomla-template-cheat-sheet/ 10/30/2008

Quick: which pins are used for I2C on an ATmega168 microcontroller?

If you’re a true alpha geek you probably already know the answer. For the rest of us, ChipDB is the greatest thing since the resistor color code cheat sheet. It’s an online database of component pinouts: common Atmel microcontrollers, the peripheral ICs sold by SparkFun, and most of the 4000, 7400 and LMxxx series parts.

The streamlined interface, reminiscent of Google, returns just the essential information much quicker than rummaging through PDF datasheets (which can also be downloaded there if you need them). And the output, being based on simple text and CSS, renders quite well on any device, even a dinky smartphone screen.

Site developer [Matt Sarnoff] summarizes and calls upon the hacking community to help expand the database:

“The goal of my site isn’t to be some comprehensive database like Octopart; just a quick reference for the chips most commonly used by hobbyists. However, entries still have to be copied in manually. If anyone’s interested in adding their favorite chips, they can request a free account and use the (very primitive at this point) part editor. Submissions are currently moderated, since this is an alpha-stage project.”

I find this jQuery Visual Cheat Sheet to be really nice and helpful.

http://woorkup.com/2009/09/26/jquery-1-3-visual-cheat-sheet/

A recycling cheat sheet.

I just made my own minimalistic cheat-sheet for Emacs, with only the most basic and absolutely-necessary commands. The goal was simply to get all the most basic commands up on one page.

Feel free to download and use it yourself! (The format is PDF).