The Queen v. Getachew
Case No.
M139/2011
Case Information
Lower Court Judgment
2/06/2011 Supreme Court of Victoria (Court of Appeal)
(Buchanan & Bongiorno JJA & Lasry AJA)
Catchwords
Criminal law — Rape — Mens rea — Trial judge directed jury that mens rea established if accused ("respondent") aware that complainant might be asleep — Respondent led no evidence of his mental state at trial — Court of Appeal held direction precluded consideration by jury of possibility that respondent believed complainant was consenting to anal intercourse while asleep — Whether sufficient evidence before jury to require direction that respondent may have believed complainant consenting while asleep — Whether incumbent upon respondent's counsel to raise respondent's awareness of complainant's lack of consent — Appropriate test to be applied in determining sufficiency of evidence for purpose of giving direction — Whether respondent able to hold belief that complainant gave consent where jury found beyond reasonable doubt that respondent knew or believed complainant asleep at time of penetration — Crimes Act 1958 (Vic), ss 36, 37, 37AA, 37AAA, 38 — Pemble v The Queen (1971) 124 CLR 107.
Documents
29/09/2011 Hearing (SLA, Adelaide)
13/10/2011 Notice of appeal
27/10/2011 Written submissions (Appellant)
27/10/2011 Chronology (Appellant)
17/11/2011 Written submissions (Respondent)
24/11/2011 Reply
08/03/2012 Hearing (Full Court, Canberra)
28/03/2012 Judgment (Judgment summary)
Plaintiff S49/2011 v. Minister for Immigration and Citizenship and Anor
Case No.
S49/2011
Related Matters:
S10/2011 - Plaintiff S10/2011 v. Minister for Immigration and Citizenship & Anor
S43/2011 - Kaur v. Minister for Immigration and Citizenship & Anor
S51/2011 - Plaintiff S51/2011 v. Minister for Immigration and Citizenship & Anor
Case Information
Catchwords
Citizenship and migration — Migration — Ministerial discretion — Procedural fairness — Section 417 of Migration Act 1958 (Cth) ("Act") empowers first defendant ("Minister") to substitute decision of Refugee Review Tribunal ("RRT") made under s 415 of Act with another decision more favourable to an applicant, if Minister thinks it is "in the public interest to do so" — Section 48B of Act empowers Minister to determine that s 48A of Act does not apply to prevent application for protection visa made by non-citizen, if Minister thinks it is "in the public interest to do so" — Plaintiff applied for Ministerial intervention pursuant to ss 48B and 417 of Act — In October 2010, Minister's delegate informed plaintiff that Minister had decided not to exercise power under s 417 of Act ("the s 417 decision), and plaintiff's s 48B application had been assessed against Minister's Guidelines but was not referred to Minister ("the s 48B decision") — Whether Minister and or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 48B decision and the s 417 decision by taking into consideration certain matters without providing plaintiff with opportunity to know about or comment on those matters — Whether plaintiff had legitimate expectation that information provided by him in respect of his applications would be considered in assessing whether he fell within Guidelines — Whether Minister and or second defendant through his officers failed to apply Minister's Guidelines correctly by taking into account irrelevant considerations or failing to take into account relevant considerations — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of Act.
Documents
01/02/2011 Application for an order to show cause
27/05/2011 Hearing (Single Justice, Sydney)
07/07/2011 Hearing (Single Justice, Sydney)
08/07/2011 Amended Application for an order to show cause
29/07/2011 Hearing (Single Justice, Sydney)
01/09/2011 Amended Application for an order to show cause
13/09/2011 Hearing (Single Justice, Sydney)
28/10/2011 Written submissions (Plaintiff)
08/11/2011 Chronology
09/12/2011 Written submissions (First and Second Defendants)
23/12/2011 Reply
23/12/2011 Chronology (First and Second Defendants)
23/12/2011 Written submissions (Attorney-General for the State of South Australia intervening)
04/01/2012 Amended Notice of Constitutional Matter
01/02/2012 Reply to intervener (Plaintiff)
07/02/2012 Hearing (Single Justice, Canberra)
08/02/2012 Hearing (Full Court, Canberra)
09/02/2012 Hearing (Full Court, Canberra)
07/09/2012 Judgment (Judgment summary)
Kaur v. Minister for Immigration and Citizenship and Anor
Case No.
S43/2011
Related Matters:
S10/2011 - Plaintiff S10/2011 v. Minister for Immigration and Citizenship & Anor
S49/2011 - Plaintiff S49/2011 v. Minister for Immigration and Citizenship & Anor
S51/2011 - Plaintiff S51/2011 v. Minister for Immigration and Citizenship & Anor
Case Information
Catchwords
Citizenship and migration — Migration — Ministerial discretion — Procedural fairness — Section 351 of Migration Act 1958 (Cth) ("Act") empowers first defendant ("Minister") to substitute decision of Migration Review Tribunal ("MRT") made under s 349 of Act with another decision more favourable to an applicant, if Minister thinks it is "in the public interest to do so" — Plaintiff granted Subclass 573 Higher Education Sector student visa in September 2005, expiring in August 2008 — In June 2006, Minister's delegate notified plaintiff by letter that she had been granted Subclass 573 Higher Education Sector student visa with permission to change education provider — Letter stated plaintiff's visa valid until June 2008 — Plaintiff applied for Subclass 572 Vocational Education and Training Sector visa in September 2008 — Applications for Subclass 572 visas must be made within 28 days after day when last substantive visa ceased to be in effect: Migration Regulations 1994 (Cth), Sched 2, sub-item 572.211(3)(c)(i) — Minister's delegate refused plaintiff's application for Subclass 572 visa because application filed out of time — MRT rejected plaintiff's application for review of delegate's decision — Plaintiff unsuccessfully applied for Ministerial intervention under s 351 of Act — Federal Court of Australia rejected plaintiff's application for review of decision of MRT — Plaintiff again sought Ministerial intervention under s 351 of Act — In January 2011, Minister's delegate informed plaintiff that second Ministerial intervention application would not be forwarded to Minister — Whether Minister and or second defendant through his officers failed to accord procedural fairness to plaintiff by considering information or matters adverse to plaintiff without providing plaintiff with opportunity to know about or comment on those matters — Whether second defendant through his officers denied plaintiff procedural fairness by failing to apply Minister's Guidelines correctly — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of Act.
Documents
21/01/2011 Application for an order to show cause
27/05/2011 Hearing (Single Justice, Sydney)
07/07/2011 Hearing (Single Justice, Sydney)
08/07/2011 Amended Application for an order to show cause
29/07/2011 Hearing (Single Justice, Sydney)
01/09/2011 Amended Application for an order to show cause
13/09/2011 Hearing (Single Justice, Sydney)
28/10/2011 Written submissions (Plaintiff)
08/11/2011 Chronology
09/12/2011 Written submissions (First and Second Defendants)
23/12/2011 Reply
23/12/2011 Chronology (First and Second Defendants)
23/12/2011 Written submissions (Attorney-General for the State of South Australia intervening)
04/01/2012 Amended Notice of Constitutional Matter
01/02/2012 Reply to intervener (Plaintiff)
07/02/2012 Hearing (Single Justice, Canberra)
08/02/2012 Hearing (Full Court, Canberra)
09/02/2012 Hearing (Full Court, Canberra)
07/09/2012 Judgment (Judgment summary)
Plaintiff S10/2011 v. Minister for Immigration and Citizenship and Anor
Case No.
S10/2011
Related Matters:
S43/2011 - Kaur v. Minister for Immigration and Citizenship & Anor
S49/2011 - Plaintiff S49/2011 v. Minister for Immigration and Citizenship & Anor
S51/2011 - Plaintiff S51/2011 v. Minister for Immgiration and Citizenship & Anor
Case Information
Catchwords
Citizenship and migration — Migration — Ministerial discretion — Procedural fairness — Section 417 of Migration Act 1958 (Cth) ("Act") empowers first defendant ("Minister") to substitute decision of Refugee Review Tribunal ("RRT") made under s 415 of Act with another decision more favourable to an applicant, if Minister thinks it is "in the public interest to do so" — Section 48B of Act empowers Minister to determine that s 48A of Act does not apply to prevent application for protection visa made by non-citizen, if Minister thinks it is "in the public interest to do so" — Plaintiff applied for Ministerial intervention pursuant to ss 48B and 417 of Act — In October 2010, Minister's delegate informed plaintiff that Minister had decided not to exercise power under s 417 of Act ("the s 417 decision), and plaintiff's s 48B application had been assessed against Minister's Guidelines but was not referred to Minister ("the s 48B decision") — Whether Minister and or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 48B decision and the s 417 decision by taking into consideration certain matters without providing plaintiff with opportunity to know about or comment on those matters — Whether plaintiff had legitimate expectation that information provided by him in respect of his applications would be considered in assessing whether he fell within Guidelines — Whether Minister and or second defendant through his officers failed to apply Minister's Guidelines correctly by taking into account irrelevant considerations or failing to take into account relevant considerations — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of Act.
Documents
07/01/2011 Application for an order to show cause
12/04/2011 Hearing (Single Justice, Sydney)
29/04/2011 Hearing (Single Justice, Sydney)
27/05/2011 Hearing (Single Justice, Sydney)
07/07/2011 Hearing (Single Justice, Sydney)
08/07/2011 Amended Application for an order to show cause
29/07/2011 Hearing (Single Justice, Sydney)
01/09/2011 Amended Application for an order to show cause
13/09/2011 Hearing (Single Justice, Sydney)
28/10/2011 Written submissions (Plaintiffs)
08/11/2011 Chronology
09/12/2011 Written submissions (First and Second Defendants)
23/12/2011 Reply
23/12/2011 Chronology (First and Second Defendants)
23/12/2011 Written submissions (Attorney-General for the State of South Australia intervening)
04/01/2012 Amended Notice of Constitutional Matter
01/02/2012 Reply to intervener (Plaintiff)
07/02/2012 Hearing (Single Justice, Canberra)
08/02/2012 Hearing (Full Court, Canberra)
09/02/2012 Hearing (Full Court, Canberra)
07/09/2012 Judgment (Judgment summary)
Clodumar v. Nauru Lands Committee
Case No.
M37/2011
Case Information
Lower Court Judgment
19/02/2002 Supreme Court of Nauru (Connell CJ)
Catchwords
Judgment given in 2002 - based on finding of fact that no Presidential approval given for claimed transfer of land to appellant - in 2011 appellant made aware of existence of Presidential approval - Approval would be complete answer to basis on which Court below found against appellant - new evidence of approval ought to be admitted and judgment below ought to be set aside.
Documents
18/05/2011 Notice of appeal
13/09/2011 Written submissions (Appellant)
13/09/2011 Chronology (Appellant)
11/10/2011 Written submissions (Respondent)
13/10/2011 Notice of Constitutional Matter
10/11/2011 Additional written submissions (Respondent)
22/11/2011 Hearing (Single Justice, Canberra by V/link to Melbourne)
10/02/2012 Further written submissions (Appellant)
24/02/2012 Further written submissions (Respondent)
09/03/2012 Reply (Appellant)
20/04/2012 Hearing (Full Court, Canberra)
20/06/2012 Judgment (Judgment summary)