case_text: number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). In my view that cannot be the case. Such a 'question': • is insufficiently particular as it does not allow the Court to answer the question on the facts of the case • in that respect, 'begs the question' as expressed by Ryan J in Lambroglou • is a finding that the Court may or may not reach, depending on the nature of the particular question which is put in the notice of appeal. Similarly in the case before me, the 'question' in par 2(g), namely whether the exercise by the Tribunal of its discretion miscarried in that the Tribunal acted upon a wrong principle or did not take into account one or more relevant considerations or took into account one or more irrelevant considerations, in my view: • is insufficiently particular • 'begs the question' as expressed by Ryan J in Lambroglou • refers to a finding that the Court may or may not reach, which needs to be based on a particular question of law the applicant must include in its notice of appeal. Further, it is not, in my view, a question of law to include a 'catch all' submission referable to questions of law in pars 2(a), (b), (c), (d), (e), (f), as a question of law which is the subject of the appeal. While the issues included in par 2(g) are clearly relevant, the paragraph is, as was submitted by Mr Coulsen for the respondent, a submission, a principle, rather than a question of law.


case_outcome: cited

case_text: number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). I note the comments of the Full Court in Ergon where their Honours accepted that a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear. However in the case before me, while I understand what the Commissioner is seeking to achieve by par 2(g), in my view it does not raise a particular, pure question of law as is explained by the Full Court in Birdseye . In Ergon , while the question was not framed as such as a 'question', nevertheless a particular issue of law specific to that case was clearly posed.


case_text: Commissioner also relies on comments of Sundberg and Kenny JJ in Ergon Energy Incorporation Limited v The Commissioner of Taxation [2006] FCAFC 125 at [51] where their Honours said: 'The drafting of the first question in the Commissioner's notice of appeal was inelegant. It did not expressly state any question at all. Its purport was, however, tolerably clear, having regard to the rebate provisions themselves, the relevant authorities...the language of the AAT's reasons, as well as the grounds as stated in the notice of appeal. The Commissioner plainly intended to raise the question of whether, on the facts as found by the AAT, the... criteria fixed by the relevant rebate provisions were satisfied.' In essence, the respondent submits as follows: • par 2(g) is in the nature of a submission rather than a question of law • par 2(g) cannot stand alone but refers back to pars (a), (b), (c), (d), (e), (f) and adds nothing to them • in any event it is stretching the meaning of 'a wrong principle' in par 2(g) to include reference to the questions of law raised in par (c) and par (e), and to that extent par (g) does not relate to those paragraphs • the applicant in par 2(g) is asking the Court to confirm a principle, which in itself is not a question of law within the meaning of s 44 because a question of law requires the Court to be able to answer a question posed with sufficient particularity to the facts. A number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). I note the comments of the Full Court in Ergon where their Honours accepted that a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear. However in the case before me, while I understand what the Commissioner is seeking to achieve by par 2(g), in my view it does not raise a particular, pure question of law as is explained by the Full Court in Birdseye . In Ergon , while the question was not framed as such as a 'question', nevertheless a particular issue of law specific to that case was clearly posed.


case_text: Looney for the applicant drew my attention to comments of Fisher J in Sullivan v Department of Transport (1978) 20 ALR 323 at 350. There his Honour said that, in allowing an appeal on the basis of s 44 AAT Act , the court must be completely satisfied that there was an error of law on the part of the Tribunal such as a misapprehension or failure to take into account any material fact. Mr Looney submitted that this case was authority for the principle that it was acceptable for the purposes of s 44 to plead an error of law such as that the Tribunal did not take into account relevant considerations. However, I do not read comments of Fisher J in that way. In that case, his Honour was describing the matters of which the Court must be satisfied in allowing an appeal under s 44. His Honour was not describing a question of law which would found an appeal under s 44. The matters about which the Court must be satisfied after considering the questions of law submitted by an applicant in its appeal from a decision of the Tribunal are quite different from the questions of law which must form the basis of the appeal under s 44. In any event, in Sullivan it does not appear on the face of the decision that the question(s) of law which founded the appeal were so broadly drafted as submitted by Mr Looney.


case_text: number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]).


case_text: The Minister submits that the Act authorises the Tribunal to continue to review the decision to its conclusion even though the particular Tribunal member has determined the matter previously and relies upon Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. The Minister also relies upon Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [26] - [27] and submits that the duty of the Tribunal to review the delegate's decision under s 414 (1) of the Act continues until one of the outcomes described in s 415(2) of the Act is reached. The Minister submits that because the Tribunal's first decision was attended by jurisdictional error by reason of a failure to comply with s 424A of the Act, it is not a valid decision under the Act and the Tribunal's duty of review accordingly continues until it validly reaches an outcome envisaged by s 415(2) of the Act.


case_outcome: referred to

case_text: In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.


case_outcome: distinguished

case_text: The Minister relied upon Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 to support the submission that the review was properly conducted. In that decision Finkelstein J found no basis to support the claim of apprehended bias. Further, the decision did not concern two decisions by the same Tribunal. Accordingly the facts are distinguishable and the Minister's reliance on this decision is misconceived. 32 Because of the adverse findings by the Tribunal member of the appellant's credit and the falsity of his documents in the first decision, the Court is satisfied that a fair minded and informed person might reasonably apprehend that the Tribunal member would not bring an impartial mind to bear in making to second decision.


case_text: Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886.


case_text: The Tribunal member's attempt to do justice does not overcome the manifest defect in the conduct of the hearing since the thought processes of the decision maker are irrelevant to the question whether bias may be apprehended through an objective assessment of the decision-maker's conduct: see Ebner v Official Trustee in Bankrupt cy [2000] HCA 63 ; (2000) 205 CLR 337 at 345 per Gleeson, Gummow and Hayne JJ; NADH 214 ALR 264.


case_title: Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163


case_text: Thirdly, the particular circumstances of this case are such that refusal to grant leave may lead to serious consequences for an appellant seeking asylum as considered in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at 548 and in SZEPN [2006] FCA 886 [16]. 22 The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.


case_text: In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.' 27 In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.


case_title: Hosler v Maughan (1989) 40 A Crim R 281


case_outcome: followed

case_text: In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.'


case_text: There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. However it is critical that the Tribunal does not close its mind to any additional material that might possibly prove probative: see SZGMF [2006] FCAFC 138 at [21] . If the decision maker's mind is closed, ' no hearing really takes place ': see Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning MR. Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings (see NADH 214 ALR at 269 per Allsop J), but it is sufficient if the parties or the public 'might entertain a reasonable apprehension': see Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]. The accepted standard of proof for such finding is one of ' real possibility' : see Livesey 151 CLR at 294.


case_title: Khadem v Barbour (1995) 38 ALD 299


case_title: Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288

case_text: In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.' 25 There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. However it is critical that the Tribunal does not close its mind to any additional material that might possibly prove probative: see SZGMF [2006] FCAFC 138 at [21] . If the decision maker's mind is closed, ' no hearing really takes place ': see Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning MR. Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings (see NADH 214 ALR at 269 per Allsop J), but it is sufficient if the parties or the public 'might entertain a reasonable apprehension': see Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]. The accepted standard of proof for such finding is one of ' real possibility' : see Livesey 151 CLR at 294. 27 In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to hear the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness's credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey [1983] HCA 17 ; 151 CLR 288; Grassy v The Queen [1989] HCA 45 ; (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.


case_outcome: considered

case_text: The Minister submits that the Act authorises the Tribunal to continue to review the decision to its conclusion even though the particular Tribunal member has determined the matter previously and relies upon Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. The Minister also relies upon Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [26] - [27] and submits that the duty of the Tribunal to review the delegate's decision under s 414 (1) of the Act continues until one of the outcomes described in s 415(2) of the Act is reached. The Minister submits that because the Tribunal's first decision was attended by jurisdictional error by reason of a failure to comply with s 424A of the Act, it is not a valid decision under the Act and the Tribunal's duty of review accordingly continues until it validly reaches an outcome envisaged by s 415(2) of the Act. 37 The Tribunal had power to reconsider its decision in the circumstances where it recognised its failure to execute its obligations under the Act: see Bhardwaj [2002] HCA 11 ; 209 CLR 597. Pursuant to s 414(1) of the Act the Tribunal is required to continue its review of the delegate's decision until one of the outcomes in s 415(2) has been reached. However, the statutory obligation to do so does not authorise the Tribunal to depart from its duty to provide a hearing which complies with the requirements of s 420(1). 38 The Court is satisfied that an objective observer might reasonably apprehend bias on the part of the Tribunal member from the conduct of the Tribunal in its reconsideration of the appellant's application after comprehensively rejecting the appellant's claims, evidence and credit in the first decision. The second decision was accordingly attended by jurisdictional error and was not ' fair' as required by s 420(1) of the Act. The Court finds that the Tribunal should have been constituted differently for determination of the second review. 39 For the above reasons the Court grants leave to the appellant to rely upon the Amended Notice of Appeal and allows the appeal, noting that there was no error by Scarlett FM in respect of the matters raised before him. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 10 July 2007 Counsel for the Appellant: M.D. Seymour Counsel for the Respondent: V. McWilliams Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 May 2007 Date of Judgment: 10 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/765.html


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_title: Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421


case_title: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138


case_text: In Livesey 151 CLR at 293-294 the High Court referred to the principle laid down in R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 258-263 as follows: 'The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.' This Court has adopted such principle in relation to matters arising in reviews under the Act: see NAHD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] per Allsop J; see also: Ex parte H [2001] HCA 28 ; 179 ALR 425. In J.R.L.; Ex parte C.J.L [1986] HCA 39 ; (1986) 161 CLR 342 at 351-352, Mason J said: 'The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial an unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong (25); Livesey v NSW Bar Association (26) . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free of bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.' This principle has been repeatedly followed: see for example Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78 at 85 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583. In Galea v Galea (1990) 19 NSWLR 263 at 277 Kirby A-CJ said: 'But Vakauta and Grassy v The Queen (1989) 63 ALJR 630; 87 ALR 618, amount to timely reminders by the High Court of Australia of the high importance attached in the administration of justice in this country to the avoidance of pre-judgment or the appearance to the reasonable lay observer that a judge will approach his or her duties without complete impartiality. Confidence in judicial determinations would be shaken were insistence upon that feature of the judicial resolution of disputes in any way to be lessened. Vakauta and Grassy restate the importance attached to this abiding value of our legal system.' 30 The Full Court's decision in NAHD 214 ALR at [21] succinctly states the relevant principles as follows: 'The enquiry is not directed to the personal thought processes of the decision- maker. It is directed to his or her conduct "objectified" through the prism of what a fair minded and informed observer would reasonably apprehend...It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality.'


case_text: Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886. 17 In NAJT 147 FCR [166] Madgwick J identified relevant considerations in the exercise of the Court's discretion to grant leave to rely on new grounds. Such considerations include the prospects of success of the new grounds; whether an acceptable explanation has been provided as to why they were not raised in the Court below; whether it would be efficient to hear the new grounds; the interests of the appellant; the precedent value of any consideration of the issues; whether there is any prejudice to the respondents and whether any such prejudice can be remedied; and where in all the circumstances do the interests of justice lie. 19 The Court pays regard to the following considerations. First, while no explanation has been provided for the abandonment of the ground of apprehension of bias by counsel in the proceedings before Scarlett FM, the Minister has not claimed that any significant prejudice would result if leave is granted. This ground was raised by the appellant in his original application for review of the Tribunal's second decision and the Minister had prepared and filed a response to that ground in the Federal Magistrates Court. As noted by Madgwick J in NAJT 147 FCR [172], the Minister in migration appeals is not in the position of a personal litigant and does not bear the financial risks and strains of personal involvement in litigation. 20 Secondly the principle of the need for finality of litigation has not been adversely affected. The appellant has conducted the proceedings within the strict time limits imposed by the Act and this matter has proceeded to appeal without delay. The appellant's application for leave to amend the Notice of Appeal has not used more of the Court's resources than is usual in matters of this nature.


case_title: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310


case_text: Apprehension of bias is fundamentally contrary to the efficient and effective administration of justice, and if found to exist constitutes procedural unfairness. A breach of the obligation to provide procedural fairness constitutes jurisdictional error for the purposes of s 75(v) of the Constitution : see SAAP v Minister for Immigration and Multicultural and Indigenous affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 at 1027 per McHugh J at [83]. The Tribunal cannot fulfil its statutory function where apprehension of bias exists, since a decision attended by jurisdictional error is no decision at all: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476.


case_title: R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248


case_title: Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 6 ALJR 583


case_title: Re Polites: Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 31 ; (1991) 173 CLR 78


case_title: Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous affairs [2005] HCA 24 ; (2005) 79 ALJR 1009


case_text: The Minister submits that the Court should not grant leave to the appellant to rely upon the Amended Notice of Appeal, and refers the Court to SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [4] wherein the Court refused leave where an appellant had abandoned a ground of appeal. 22 The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.


case_text: Only where it is expedient and in the interests of justice to do so will leave be granted to argue a ground of appeal abandoned in a lower court: see O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at [319] ; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at [7] . In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] Madgwick J adopted the approach taken by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where their Honours said: 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' This principle has been followed more recently in SZFIR v Minister for Immigration and Citizenship [2007] FCA 424 and SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886. 21 Thirdly, the particular circumstances of this case are such that refusal to grant leave may lead to serious consequences for an appellant seeking asylum as considered in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at 548 and in SZEPN [2006] FCA 886 [16]. 22 The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.


case_text: The merits of the proposed ground of appeal is also a significant consideration in determining whether it is expedient and in the interests of justice to grant leave: see SZEPN [2006] FCA 886 [17] per Branson J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [177] - [178] ; IYER [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24]; and Gomez 190 ALR at [548]. In SZCIJ [2006] FCAFC 62 the Full Court refused to grant leave to amend a notice of appeal for two reasons, one reason being that the appellant disavowed the ground sought to be raised in the Federal Magistrates Court. However the more fundamental reason was that leave to amend would be futile since the ground sought to be relied upon lacked merit.


case_text: In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 587 Toohey J said: 'There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case'. However the person making the waiver must have a full appreciation of his or her action. In Vyvyan v Vyvyan (1861) 30 Beav 65 at 74; 54 ER 813 at 817 the Court stated: 'Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim.'


case_title: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158


case_title: Vyvyan v Vyvyan (1861) 54 ER 813


case_outcome: affirmed

case_text: appeal is from a judgment of the Federal Magistrates Court of Australia, delivered on 10 February 2009, and published as MZYBX v Minister for Immigration & Citizenship & Anor [2009] FMCA 195. The learned federal magistrate dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), refusing to grant to the appellant a protection visa. The appellant is a citizen of Malaysia who came to Australia with a legitimate visa on 21 November 2007. He applied for a protection visa on 3 January 2008. On 29 February 2008, the Minister's delegate refused to grant a protection visa. The appellant applied to the Tribunal for review of that decision. He attended at a hearing before the Tribunal on 16 May 2008 where he gave evidence and made submissions with the assistance of an interpreter in the Tamil and English languages. The Tribunal's decision was signed on 11 July 2008 and handed down or sent to the appellant on 4 August 2008. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. The relevant criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call those two documents, taken together, the Convention. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to 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 The appellant claimed to have a well-founded fear of persecution if he should return to Malaysia for reasons of his race, his religion and his political opinion. As a Tamil he was brought up in the Hindu religion. Some years ago, he intended to marry a Muslim woman and began the process of conversion to Islam for that purpose. The woman's family eventually put a stop to the marriage. The appellant reverted to his Hindu religion, and married a Hindu woman. Nonetheless, he said that Muslims still claim him as a Muslim and seek to persuade him to follow the Muslim faith. In addition, the appellant claimed to have a history of activism for the rights of Hindus in Malaysia, including activity with an organisation calling itself Hindraf. He said that he was at a demonstration on 30 October 2007, at which a crowd attempted to prevent the demolition of a Hindu shrine, and that he was beaten by police and detained overnight. He said that he was also threatened that he would be imprisoned if he was caught being involved in an illegal demonstration again. The appellant also claimed to have been an active member of a political party referred to as the DAP. In its reasons for decision the Tribunal expressed some doubts about the credibility of the appellant, but gave him the benefit of those doubts and accepted his claims as he stated them. It did not accept, however, that anything that had happened to the appellant, or would happen to him in the future in Malaysia, was sufficiently serious to amount to persecution as defined in s 91R of the Migration Act .


case_text: In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] .


case_outcome: applied

case_text: An allegation of apprehension of bias is a serious matter which must be specifically pleaded: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). The appellant is required to establish that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal is required to consider: see Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at [90] per Kirby J.


case_title: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128


case_text: The findings of the Tribunal in relation to the summons and verdict documents were available to it on the basis of the comprehensive findings it had made concerning its lack of satisfaction of the appellant's credibility and the truthfulness of his claims. The High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ said: It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. 27 The fact that the Tribunal stated that it did not give weight to the documents ' based on the findings above ', that is, the Tribunal's findings as to the lack of credibility of the appellant, does not constitute jurisdictional error on the part of the Tribunal. Accordingly the Court dismisses this submission. 28 The Court can find no error in the decision of the Tribunal nor of Turner FM and accordingly the appeal is dismissed.


case_title: Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437


case_title: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100


case_title: SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834


case_text: In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] . 20 In SZBEL [2006] HCA 63 ; 231 ALR 592, the High Court observed of s 425 of the Act (at [36]): It is also important to recognise that the invitation to an applicant to appear before the tribunal to give evidence and make submissions is an invitation that need not be extended if the tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the tribunal will begin its interview of an applicant who has accepted the tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. 21 The appellant was put on notice of the issues for determination at the Tribunal hearing as demonstrated, inter alia, by the following passages from the Tribunal's decision: I told him that I understood that it was easy to get official looking documents in China which were not genuine so that I would have regard to that when I was considering whether to accept that these documents were what they were purported to be. 22 The Tribunal's decision also reveals that the appellant did not experience difficulties in understanding the interpreter at the Tribunal hearing and it specifically noted that the appellant: ... gave oral evidence with the assistance of a suitably accredited interpreter. He said that he had no difficulty understanding the interpreter and no objection to using her services during the hearing. Later, referring to the appellant's claim that his assistant in running the underground church was arrested, the Tribunal said: I told him that I was finding his evidence about her role very vague and asked him again what precisely she did when she took over the management of the orders for the paper. He responded that she was also a leader. He added nothing more.


case_text: In his written submissions, the appellant referred to the decision of the Full Court of this Court in SZCOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 9 in support of his contention that the Tribunal had disregarded the summons and verdict documents that he had provided to the Tribunal, and that the Tribunal had not provided the appellant with an opportunity to comment on issues arising from the documentary evidence he had provided, in breach of s 424A(1) of the Act. 14 Turner FM dismissed the appellant's claim that the Tribunal had breached s 424A(1) of the Act for two reasons. Firstly, the Tribunal had relied on its own subjective appraisals of the claims and evidence advanced by the appellant and this did not constitute ' information' within the meaning of the Act. Secondly the independent country information relied upon by the Tribunal in its finding that the supporting documents provided by the appellant were not a reliable source of evidence, fell within the exception to s 424A(1) in s 424A(3)(b) of the Act. 15 It is clear from the decision of the Tribunal that it had relied on its subjective appraisal of the evidence given by the appellant in its finding that the appellant's claims were not credible. The Tribunal considered the appellant's evidence to be vague, lacking in detail and cogency and that his claims were implausible. It concluded that the appellant was not being truthful with respect to his claims.


case_text: The notice of appeal contains two grounds. The first is that the Tribunal breached its duty under s 424A of the Act . Although there was no argument put to me to support this allegation, I have had regard to the decisions and reasons of the Federal Magistrate and the Tribunal, and I am not persuaded there has been any breach of that section. I agree with the reasoning of the Federal Magistrate in relation to the authority of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , namely, that s 424A of the Act is not engaged by statements which merely point to inconsistencies in an applicant's evidence. 5 In relation to the second ground of appeal, which is that the Tribunal failed to refer to sufficient independent country information to properly consider the appellant's application, I am not persuaded that this ground has any force for three reasons. The first reason is because the decision as to what constitutes sufficient independent country information is a matter for the Tribunal; it is purely a question of fact which is not capable of giving rise to a jurisdictional error and cannot be entered into by this Court. Secondly, the decision as to what type of independent country information should be consulted is again a matter for the Tribunal which cannot be the subject of review. Finally, there is no indication either in the submissions of the appellant or on the face of the Tribunal's reasons as to any way in which other independent country information was not taken into account. In the absence of any reference to specific material which it is said ought to have been taken into account, this ground of appeal cannot succeed. 6 Accordingly, for these reasons, I conclude that the appeal ought to be dismissed, and that costs be fixed in a lump sum of $2,280.00. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 20 February 2008 The appellants appeared in person Counsel for the Respondent: Mr G. Hooper Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 19 February 2008 Date of Judgment: 19 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/119.html


case_text: The approach of North J in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 is apt. In circumstances where the Tribunal's decision is based on alternative reasons and grounds, relief would not issue. It is unnecessary to deal with an additional argument put by the Minister that even if relief would otherwise issue the Court should not grant it, as a matter of discretion. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 15 February 2006 The Appellant appeared in person Counsel for the Respondent: R A Pepper Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 8 February 2006 Date of Judgment: 8 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/57.html


case_title: Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576

case_text: In my view, there was no obligation on the part of Tribunal to inform Mr Green of its views regarding his credibility and the weight which it was prepared to give his evidence. The Tribunal's conclusion as to his credibility was part of its reasoning and thought processes in relation to the determination of the whole matter, and thus was not required to be put to Mr Green: see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. Although it was for the Tribunal to weigh Mr Green's evidence and in so doing form a view as to his credibility, the reasoning involved in this task did not need to be signalled. 39 Secondly, it is said that the Tribunal ought to have sought further evidence from persons who made statements but were not called to give oral evidence. The Tribunal observed in its reasons at [66] that: 'It was notable that none of the people most closely involved with the applicant his father, his son, his step-mother, his sister and his de facto gave evidence at the hearing. [His son] and [his de facto] apparently attended the hearing, however.' 40 There was no requirement, in my view, that the Tribunal seek further evidence from these persons. If Mr Green wished to adduce evidence from these persons, he had a full opportunity to do so. Given that Mr Green chose not to call them, it is not appropriate to expect the Tribunal to seek any further evidence on the basis that they may be able to provide some useful information.


case_text: Although the observation of the Tribunal at [66] concerning Mr Green's failure to call certain witnesses could be construed adversely to Mr Green's case, there is no indication that those persons could have provided material to assist his case. On the other hand, however, having regard to the fact that the Tribunal's proceedings are inquisitorial in nature and the observations in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308 are not applicable, there is no indication in this case that any particular adverse inference was drawn or suggested on the basis of the fact that the witnesses did not give evidence orally and that the omission to ask them to do so rested with Mr Green (and not on the Tribunal). 42 Finally, it is said that there were three findings of fact made by the Tribunal for which there was no evidentiary basis. This submission relies on an interpretation of the Tribunal's reasons at [109]: 'The applicant has an aunt (his father's sister) in England, though he says he does not remember her. While his aunt could not necessarily be expected to welcome the applicant into her home, it is not improbable that she would be able to give him some guidance on becoming re-established in the United Kingdom. The skills he has developed as a painter would be as useful to him there as they are here, and indeed the larger market might be to his advantage. He has no business ties within Australia. Nothing in the evidence suggests that he would be unable to obtain [the drug facilitating his rehabilitation] in the United Kingdom and thereby continue his drug rehabilitation.' 43 When closely examined, it is apparent that each of the views expressed by the Tribunal at [109] is in tentative and speculative terms and that they are not expressed as findings of fact. The general effect of the observations is that there is simply no evidence to support findings to the contrary. So far as the observation in relation to Mr Green's aunt is concerned, this is a general statement which does not appear to have been given any particular weight. The statements in this paragraph really amount on their face to an expression of views which were open to the Tribunal in the circumstances of this case. 44 I therefore do not consider that there was any failure by the Tribunal to provide procedural fairness in this case. 45 For the reasons which I have given above in relation to the need to consider mitigating factors pursuant to paragraph 2.8 of the Direction, this application is granted and the matter is remitted to the Tribunal for determination in accordance with these reasons. As the second respondent filed a submitting appearance, it is appropriate that the costs of the application are borne by the first respondent. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 20 February 2008 Counsel for the Applicant: Ms S. Higgins Solicitor for the Applicant: Ebsworth & Ebsworth Lawyers Counsel for the Respondent: Ms B. Nolan Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 25 January 2008 Date of Judgment: 20 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/125.html


case_text: Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that the relevant person or body (which includes the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 ; (1999) 90 FCR 583 at 591 (per Katz J)) must comply with such a direction. The power of the Minister under s 499(1) is limited by s 499(2), which provides that a direction must be consistent with the Act and regulations promulgated pursuant to it. 10 On 23 August 2001, pursuant to s 499(1), the Minister issued Direction No 21 entitled Visa Refusal and Cancellation under section 501 ("the Direction"). Part 2 of the Direction concerns the exercise of the discretion under s 501(2) once a decision has been made that the character test is not satisfied, a matter which is conceded by Mr Green in this case. Part 2 provides that, when exercising the discretion, "decision-makers must have regard to" three primary considerations, namely, the protection of the Australian community, the expectations of the Australian community and, if relevant, the best interests of any children involved. Other considerations, which are not "primary considerations" and are not mandatory, include the effects on the visa-holder's family, evidence of rehabilitation, the likelihood of breaching or evading obligations under a legal or other ongoing matter, the duration of the proposed stay in Australia and whether the visa is permanent or temporary. 11 Paragraph 2.5 of the Direction identifies three factors which are relevant to the protection of the Australian community. They are the seriousness and nature of the conduct, the likelihood of recidivism and whether visa cancellation would provide general deterrence. 12 Of importance to this case is the process laid down by the Direction for considering "the seriousness and the nature of the conduct of a non-citizen". Paragraph 2.6 outlines what the Minister views as serious offences, and paragraph 2.7 states that the sentence imposed for a crime is an appropriate indicator of the seriousness of the offender's conduct against the community. Paragraph 2.8 then provides that decision-makers must take into account certain mitigating considerations: 'When exercising discretion, decision-makers must also take the following factors into account as relevant considerations: (a) any relevant factors provided by the non-citizen as mitigating factors ; (b) the offence is not classified as an offence in Australia. ... (c) a lighter sentence would be incurred in Australia for a similar offence; or (d) the non-citizen has been pardoned' (Emphasis added.) 13 The Tribunal's reasons comprehensively set out at [10]-[76] the chronology of facts and the evidence relevant to this matter. The Tribunal summarised Mr Green's personal history, detailed his criminal record in Australia since 1978, and described the events leading up to the cancellation of his visa by the Minister and his detention on 16 August 2005. 14 The Tribunal's reasons summarised the evidence led by Mr Green, most of which pertained to Mr Green's explanation of his personal history, how and why he came to possess a criminal record, and also some mitigating circumstances. His reasons, in short, were that he had led a life of few opportunities, and that he had unfortunately been surrounded by "bad kids, then bad adults". The Tribunal described Mr Green's time in prison, and noted his evidence which stated that he was not a "vicious outlaw type of criminal", but rather more of the "Robin Hood" type. The Tribunal also discussed Mr Green's developing drug addiction, and the crimes he committed to support that addiction, as well as the rehabilitation which Mr Green had sought in art and family. 15 The Tribunal found Mr Green's evidence unsatisfactory in certain respects. It concluded at [53] that although Mr Green's evidence should not "be entirely discarded, his tendency towards exaggeration and opportunistic fabrication dictates a certain caution in evaluating it." An observation as to the need for caution in this context does not mean that Mr Green's evidence was rejected out of hand. 16 After making this finding, the Tribunal addressed the psychological and other evidence before it. Several psychological assessments of Mr Green were before the Tribunal and, although they appeared to "differ in material respects", the Tribunal found at [64]: 'It is difficult to derive much assistance from this part of the evidence, other than to conclude that the applicant has psychological problems, whether produced by drug abuse, incarceration, an unhappy childhood or a combination of all three. He has not to date been able to shake off anti-social or self-destructive patterns of behaviour but is not a hopeless case. He could be rehabilitated and his development of his artistic capacities, as well as his [drug rehabilitation] program are positive steps, as is the possibility of employment and of continuing his relationship with [a female friend].' 17 The Tribunal then summarised other evidence provided by friends and family of Mr Green, which detailed various matters of personal concern, including the likelihood of Mr Green obtaining employment after his release from prison, continuing an intimate relationship with a female friend, and succeeding in an artistic career.


case_text: The appellant submitted that the learned Federal Magistrate erred in finding no jurisdictional error in the Tribunal's decision. In reference to his Honour's reasons for dismissing the claim of jurisdictional error, the appellant submitted that: ' [ s ] imply because the fact of the publication on the internet was raised at the [Tribunal] hearing and recorded in the reasons of the [Tribunal] does not mean that the [Tribunal] considered the effect of that publication when it adopted the earlier [Tribunal's] reasoning. If that information was in fact considered in this context by the [Tribunal] then [at] least some findings would be expected in respect of the likelihood that the information on the internet had come to the attention of the ... community in [the capital city] or the wider ... community [in the country of origin] '. 35 In this regard, the appellant argued that the structure of the Tribunal's reasons indicated that it had not in fact considered the likely effect of the internet publication on the substance of the parents' claims. The Tribunal made separate findings on the sur place claim and yet adopted the conclusion of the earlier Tribunal 'for the same reasons' in relation to the parents' claims. It was submitted that the Tribunal's treatment of the issue was insufficient. That the decision of the Federal Court Judge was in the public domain was a fact to be regarded as having been before the Tribunal. Nevertheless, the only basis upon which the Tribunal addressed the sur place claim, in response to the issue of the internet publication being raised by the appellant's father, was that independent information was available that unsuccessful refugee applicants who return to the parents' country of origin were not subjected to adverse attention or persecution for that reason alone . The appellant submitted that this exchange did not constitute a proper consideration of the effect of the internet publication on the substance of the parents' claims. 36 Further, the appellant argued that the content and structure of the written statements provided by the parents to the Tribunal demonstrated that the matter had been sufficiently articulated before the Tribunal in the parents' case. Whether the matter had been fully articulated is not determinative: rather, because the matter was sufficiently significant the Tribunal in the present case was required to make a finding on it having regard to the material before it. The decision in NABE mandated such a response, and contrary to that authority, the Tribunal Member had failed to make findings as to the content of the Federal Court Judge's decision, what relevant material had appeared on the internet, how long it had been on the internet, and who might have accessed it. As a matter of logic, and as a matter of necessary fact finding, the implications of the publication on the internet had a very significant role to play in determining whether the rumour about the parents could have gone further than their home neighbourhood, a suburb of the capital city, and therefore whether relocation by the parents was a viable option. In light of the failure to do so, the Tribunal had not considered the totality of the appellant's circumstances as it was required to do by the decisions in Guo (per the joint judgment of the High Court at 577-578) and Wu Shan Liang (at 294 per Kirby J, concurring). 37 The appellant also pointed to an issue of an admitted factual error that his parents had made in their claims to the Tribunal. In their written statement to the Tribunal, the appellant's parents said: 'When we seeked judicial review at one stage, at the Federal Court of Australia, the decision was published on the internet with our real names and work places and the name of the [dissident group] supporter who worked at [the company] .' (Emphasis added.) While that name did not actually appear in the Federal Court Judge's decision, it remained significant that the parents had claimed the contrary. The significance arose from the Tribunal's conclusion in the parents' case that the nature of their contact with the dissident group supporter who was in fact named by the Tribunal had not been brought to the attention of the authorities in the country of origin. In the light of the parents' (mistaken) claim that that dissident group supporter's name had appeared in the Federal Court judgment, it was submitted that the Tribunal Member was required to determine whether that person had in fact been so named, and if so, whether the earlier Tribunal's reasoning (in the parents' case) in relation to that person remained valid. The Tribunal Member's failure to identify the mistaken claim, despite the extensive consideration that was given to the dissident group supporter's role in the earlier Tribunal decision, was said to show the lack of consideration that the Tribunal Member gave to the substance of the appellant's claims. 46 It was that latter possibility alone that the Tribunal Member negatived. He negatived it by reference to 'independent' materials (actually from the Australian government itself). The information cited was, so far as relevant, as follows: ' QUESTIONS: [25/06/03] Q.5 Does the ... Government [in the country of origin] adequately protect ... [those who share ethnicity with the dissident group] ? ANSWERS: [09/07/03] The response to this request for information on the current treatment of [those who share ethnicity with the dissident group] in [the country of origin] should be read in conjunction with CX... which addresses in some detail the current treatment of [various ethnic and religious groups] in [the country of origin] . In preparing this response we sought information from ... police [in the country of origin] and a reliable senior ... journalist [who shares ethnicity with the dissident group] . [Those who share ethnicity with the dissident group] who return to [the country of origin] are not usually persecuted by the ... Government or its agents. There are no restrictions prohibiting [those who share ethnicity with the dissident group] from resettling in the ... of the Country. Many [of such ethnicity] (and Muslims) living in the ... are subject to extortion and forcible recruitment by the [dissident group] . A.1 Since the signing of [a] ceasefire agreement ..., the incidence of human rights abuses against [those who share ethnicity with the dissident group] by the ... Government has decreased dramatically (refer CX...). ... [R] eturnees [who share ethnicity with the dissident group] are unlikely to be persecuted by the Government. We have no information indicating ill treatment of failed asylum seekers by government authorities on their return to [the country of origin] (refer CX...).' 47 This entirely deals with unsuccessful claims for refugee status by returnees who share ethnicity with the dissident group in general . There was no consideration of the particular claims made by the appellant's father on his behalf. It is to be assumed (and hoped) that there were very few other cases of publication of the details of applicants who share ethnicity with the dissident group that identified them and linked them with allegedly well-known incidents, such as the theft of a computer from a major transport facility. 48 Even exercising due charity towards the Tribunal Member's stated reasons, it is not, it seems to me, reasonable to read them as including a consideration of the actual and specific claims made as part of the consideration of the less specific kind of claim that the Tribunal did deal with. Rather, the impression is that the Tribunal missed the potential force of what the father was saying, and the separate and distinct way he was putting the sur place claim. 51 As such it appears that what may fairly be regarded as an integer of the claim was not considered. That, it is well established, amounts to a constructive failure to exercise jurisdiction. Whatever its strengths or weaknesses, the appellant was entitled to have his claim fully considered. I adhere to what I said about NABE and other cases in SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 ; (2006) 150 FCR 448 at [50] - [52] . The considerations discussed there are generally relevant here. 52 Accordingly, the decision of the Tribunal will be quashed and the matter remitted for further consideration according to law. 53 I add that, given what has been made of the publication of the earlier judgment of this Court, I have taken reasonable steps to speak in generalities. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 29 January 2007 Counsel for the Appellant: D Godwin Counsel for the Respondents: M Wigney Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 6 December 2005 Date of Judgment: 11 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/5.html


case_title: Kay v Comcare [2006] AATA 50

case_text: The applicant submits that the logical consequence of the application of Wiegand 72 ALD 795 had been demonstrated by the Tribunal's decision in another case ( Kay v Comcare [2006] AATA 50): While I am satisfied that various incidents occurred which Ms Kay perceived as harassment or discrimination, I accept the conclusion reached by Dr Duldig [that there was no evidence of workplace harassment]. However, it was also submitted that, even if there had been no actual harassment, it was sufficient that Ms Kay believed that this was occurring and that this perception was sufficient to establish the causal association under the Act . I also accept that submission: see Rodriguez and Telstra Corporation Ltd [2002] FCA 1400 and Wiegand v Comcare (2002) 72 ALD 795. 38 According to the applicant, while it is possible for a disease to arise whilst an employee is physically at the workplace and equally possible that an event in the workplace may by an unreasonable perception lead to the development of a disease, in such cases it cannot be said, without more, that the Commonwealth employment has contributed in a "material degree" to the disease, or an aggravation of the disease. 39 The applicant argues that the proper construction of the term "disease" in s 4 requires that the Commonwealth work of the claimant must make a material contribution to the ailment or the aggravation. That in turn requires that the work with the Commonwealth, rather than an unreasonable perception of the work, be the material contribution. The applicant submits that support for this construction can be found in the second reading speech of the Bill which introduced the Act . The relevant Minister then said: Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. ... It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.


case_text: This matter was considered by a majority (French and Stone JJ) of the Full Court of this Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 and by Finn J in Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536. I respectfully agree with what their Honours have said. 48 The legislative history is that in the antecedent 1971 Act (the Compensation (Commonwealth Government Employees) Act 1971 (Cth)) the definition of disease did not require a "material" contribution by the employment. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Court had diminished the significance to be accorded to the term "material" in the 1988 (and current) Act, saying (at 323) that all it required was "that features of the employment did in fact and in truth contribute to the condition complained of" and that "[o]nce the link is established, however, it matters not that the contribution be large or small". In Canute [2005] FCAFC 262 ; 148 FCR 232 the majority considered that that approach failed to have regard to the legislative history and the Minister's statement in the second reading speech to the Bill which became the 1988 Act, that the new test, constituted by the qualification of the contribution that it be "material", "will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease " (emphasis added).


case_text: This matter was considered by a majority (French and Stone JJ) of the Full Court of this Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 and by Finn J in Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536. I respectfully agree with what their Honours have said. 49 In Sahu-Khan [2007] FCA 15 ; 156 FCR 536 at [15] - [16] , Finn J concluded: There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word "material" in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word "materially" in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is "4. In a material degree; substantially, considerably." An example given of this usage is that of contributing "materially to the funds required" for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the "loose sense" of the definition of "material" in the Macquarie dictionary " namely, 'of substantial import or much consequence' [rather than the] legal sense of 'pertinent' or 'likely to influence '". Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition: (i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act; (ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation"); (iii) whether this will be so in a given case will be a matter of fact and degree. (Emphasis in original.) 50 Insofar as observations in Wiegand 72 ALD 795 may suggest that some less onerous view of "in a material degree" than that just discussed is appropriate, then such observations should, in my view, no longer be followed.


case_outcome: discussed

case_text: The legislative history is that in the antecedent 1971 Act (the Compensation (Commonwealth Government Employees) Act 1971 (Cth)) the definition of disease did not require a "material" contribution by the employment. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Court had diminished the significance to be accorded to the term "material" in the 1988 (and current) Act, saying (at 323) that all it required was "that features of the employment did in fact and in truth contribute to the condition complained of" and that "[o]nce the link is established, however, it matters not that the contribution be large or small". In Canute [2005] FCAFC 262 ; 148 FCR 232 the majority considered that that approach failed to have regard to the legislative history and the Minister's statement in the second reading speech to the Bill which became the 1988 Act, that the new test, constituted by the qualification of the contribution that it be "material", "will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease " (emphasis added).


case_title: Westgate v Australian Telecommunications Commission (1990) 17 FCR 235

case_text: However, the Tribunal is not shown to have applied any such unduly generous test: the Tribunal relied on Wiegand 72 ALD 795 only to reject the applicant's assertion that it needed to be shown that the workload required of Ms Caire was "excessive". In that regard, in my opinion, von Doussa J's approach in Wiegand 72 ALD 795 was correct, and there was no error of law arising from the Tribunal's reliance on it. An alleged contribution which is merely imagined by the employee, in circumstances where the employment was in truth, in the apt phrase of Davies J in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, an "inert" factor will plainly not suffice. But that was expressly acknowledged in Wiegand 72 ALD 795 at [24] and [25] and there was no suggestion to the contrary here. 52 Nothing the Tribunal said denies that some aspect of the employment must make an actual contribution to the ailment in question, which must be a contribution in a material degree. The Tribunal found as a matter of fact that Ms Caire had to fulfil from time to time "a heavy workload" notwithstanding ameliorative effects on behalf of the applicant. Whether such workload warranted the epithet "excessive" was, as the Tribunal observed, immaterial. Nor is this a case where any error through application of some wrong concept of "in a material degree" should be inferred. The Tribunal did not decide the matter on the basis that an actual but bare contribution would suffice. It is clear that the Tribunal found that there was an important contribution to the upper limb disease by the keyboard work actually undertaken by Ms Caire. The dispute before the Tribunal had been one about whether there was much of any such work undertaken by her. 53 It may be said at the outset that s 7(7) embodies such a draconian concept that it may be doubted whether its terms do not exceed what might be thought to be any rational underlying policy. Counsel for the applicant in submissions suggested that: Section 7(7) is intended to ensure that a claimant seeking the protection of beneficial legislation does so with honesty, truthfulness and openness. Such qualities are essential to ensure the proper administration of public funds, particularly in the context of legislation which is beneficial and not adversarial.


case_text: Nor can it be said that the decision was so unreasonable that no reasonable decision-maker could properly have arrived at it: see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. See also Minister for Immigration v Eshetu [1999] HCA 21 ; (1990) 197 CLR 611 at [130] - [138] .


case_text: Mr Rivera relies upon the well-known statement of principle of Mason J in Kioa v West [1985] HCA 81 ; (1981) 159 CLR 550 at 587. His Honour there stated that if a decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by an applicant, there may be a case for saying that procedural fairness requires he be given an opportunity to respond. 24 However, the substance of Mr Rivera's complaint under this ground is that there were matters passing between the Department of Corrective Services ("the DCS") and the Commission of which Mr Rivera was not on notice. He submitted that it is to be inferred from the fax of 30 August 2007 that there must have been other communications between the DCS and the Commission, possibly oral communications of which Mr Rivera was not aware. 25 The short answer to this ground is that Mr Rivera was well on notice of the critical issue or factor on which the decision of 13 September 2007 turned. He was informed in the letter of 30 May 2007 that the President may decline to continue the inquiry if the President were to form the opinion that a more appropriate remedy was available in civil litigation seeking damages.


case_title: Minister for Immigration v Eshetu [1999] HCA 21 ; (1990) 197 CLR 611


case_outcome: related

case_text: will be apparent from the judgment which I delivered a short time ago ( Sebel Furniture Limited v Acoustic & Felts Pty Limited (No 2) [2009] FCA 291), my associate was notified yesterday afternoon that the applicant would seek leave to discontinue all of the claims previously made by it, with the exception of those set out in subparagraphs 3(a), 3(b) and 3(c) of the Amended Application filed on 23 December 2008. That intention had been communicated to the solicitors for the respondent somewhat earlier in a facsimile transmission dated 24 March 2009. After I announced my decision on the disqualification application, Counsel for the applicant sought leave to discontinue the proceedings in the particular respects set out in the Notice of Discontinuance dated today, signed by Mr Whitehead and handed up to me. There is no opposition from the solicitor for the respondent to the leave to discontinue sought by the applicant being granted by me and I grant that leave. The Notice of Discontinuance may be filed in Court.


case_text: will be remembered that, on 12 January 2009, when I delivered judgment on the applicant's interlocutory application ( Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6) , I made an order for costs in respect of that application, the terms of that particular order being: The applicant pay the respondent's costs of and incidental to the interlocutory hearing which took place before the Court on 23 December last. I have been informed that no further evidence has been filed by either party since the last directions hearing which was held on 5 February 2009. This is not a matter of criticism, as it seems that the parties have been attempting to resolve the matter. I think that costs to date will have been incurred in relation to three broad subject matters, namely: (1) Work done in relation to the interlocutory hearing; (2) Work done on the balance of the proceedings (including the disqualification application but excluding the interlocutory hearing and excluding the Cross-Claim); and (3) Work done in relation to the Cross-Claim.


case_text: I would add that even if I had come to the contrary view on the denial of procedural fairness ground, with the consequence that the Tribunal's decision was infected with error of law, I would nevertheless have dismissed the appeal because I consider that the Tribunal's decision in respect of 3D's application was clearly correct on the material before it: see Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at 26 27; McAuliffe v Secretary, Department of Social Security [1991] FCA 268 ; (1991) 23 ALD 284 at 295 296, affirmed at [1992] FCA 483 ; (1992) 28 ALD 609 at 618 619; State Rail Authority of New South Wales v Collector of Customs [1991] FCA 610 ; (1991) 33 FCR 211 at 217. Courts do not remit matters for reconsideration where it is futile to do so: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562 per Sackville J; Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at 182.


case_text: These grounds of appeal provide no foundation to sustain this appeal. For a start, they do not raise pure questions of law and that is what is required to found an appeal to this Court from a decision of the Tribunal pursuant to s 44 of the AAT Act: Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at [18] per Branson and Stone JJ. At best, they are mixed questions of fact and law; at worst, pure questions of fact. 13 Second, even if these grounds of appeal did raise pure questions of law, they are ill conceived. There are no errors of the kind alleged. During the course of argument, Senior Counsel for 3D conceded, contrary to 3D's written submissions at [20], that the identity of the payee of an outgoing could be relevant, if not determinative, to whether the outgoing was an allowable deduction to the payer. For example, in the facts of the present case, without knowing the identity of the payee, one would have no way of testing whether the outgoings were being made to the owner of the equipment; that would be relevant to a determination of the proper characterisation of the outgoings; in other words, what they were paid for. 14 Third, having regard to the way in which 3D advanced its case in the Tribunal, namely, that the outgoings were paid to Mr Borg for the hire/purchase of equipment from MSH, and in the complete absence of any evidence that such equipment was hired/purchased from any other person, the Tribunal's findings that neither MSH nor Mr Borg existed is determinative of the s 8-1 issue. As the Tribunal concluded, 3D failed to discharge the onus it carried. 15 The Tribunal was said to have erred in law in taking into account a number of allegations/assertions made by the Commissioner in his submissions, which are Annexure A to the Tribunal's reasons, as to the integrity of the Price Spreadsheets and related documentation where those assertions/allegations were not put to Mrs Lynette Montgomery ('Mrs Montgomery') or any other witness in cross-examination by the Commissioner. This, it is said, involved the Tribunal in failing to accord procedural fairness to Mrs Montgomery and the other witnesses for 3D.