case_text: Section 21(1) has as its ancestor O XXV r 5 of the Rules of the Supreme Court 1883 (Eng) which developed from the first English legislative provision, s 50 of the Chancery Procedure Act 1852 (UK): see Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 108-109 per Hill J. Although prior to the English legislation mentioned courts of that country had a "deep suspicion" of the declaration of right (Zamir and Woolf The Declaratory Judgment , second edition, 1993, at 11), it seems as though this reluctance only extended to the grant of "pure" declaratory relief. Thus in Clough v Ratcliff (1847) 1 De G & Sm 164 at 178 Knight Bruce V-C said: "Nakedly to declare a right, without doing or directing anything else relating to the right, does not, I conceive, belong to the functions of this Court [of Chancery]." 61 I conclude that I should not follow Intertax . It is appropriate to make the declarations sought. It is sometimes said that a declaration is an appropriate way of marking the Court's disapproval of the contravening conduct: see eg McDougall at [55]. While certainly the conduct of the corporate defendants and Stephen McDougall has been reprehensible, the actual declarations do no more than declare the bare facts that the defendants operated an unregistered managed investment scheme and carried on a financial services business without a licence. The declarations would be equally appropriate if the defendants' business had been carried on with exemplary prudence and meticulous bookkeeping. A more satisfactory rationale may be that the right declared will be a public right. In Tobacco Institute (at 98) Sheppard J said that the declaration in that case would " ... be a declaration of right because the right which will be declared will be a public right, namely, the right of the public not to be misled or deceived by factual statements in an advertisement concerning the effects of passive smoking." In the present case the legislation contravened protects public rights by regulating the conduct of those who seek investment from the public. Declarations as to the contraventions provide a formal vindication of the law's operation.


case_outcome: cited

case_text: Section 21(1) has as its ancestor O XXV r 5 of the Rules of the Supreme Court 1883 (Eng) which developed from the first English legislative provision, s 50 of the Chancery Procedure Act 1852 (UK): see Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 108-109 per Hill J. Although prior to the English legislation mentioned courts of that country had a "deep suspicion" of the declaration of right (Zamir and Woolf The Declaratory Judgment , second edition, 1993, at 11), it seems as though this reluctance only extended to the grant of "pure" declaratory relief. Thus in Clough v Ratcliff (1847) 1 De G & Sm 164 at 178 Knight Bruce V-C said: "Nakedly to declare a right, without doing or directing anything else relating to the right, does not, I conceive, belong to the functions of this Court [of Chancery]."


case_text: There is high authority against the supposed limitation on the exercise of the discretionary power to grant declaratory relief. In Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 the High Court, in respect of then current committal proceedings (ie actual, not hypothetical, criminal proceedings) made declarations that (i) certain documents were privileged from production and that (ii) the information laid against Mr Whitlam was bad in law. Gibbs ACJ said at 20-21: "It is well established that the power of the court to make a declaration, under a provision such as s 75 of the Supreme Court Act 1970 (N.S.W.), as amended, or O. 26, r. 19 of the Rules of this Court, is a very wide one: Forster v. Jododex Aust. Pty. Ltd . [1972] HCA 61 ; (1972) 127 CLR 421, at pp 435-436 . It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings. Indeed in Dyson v. Attorney-General [1911] 1 KB 410, which is one of the foundations of the law on this subject, it was held that the court had power to make a declaration that the plaintiff was not under any obligation to comply with the requisitions contained in a notice sent to him by the Commissioners of Inland Revenue, notwithstanding that neglect to comply with the notice was an offence see especially per Farwell L.J. [1911]1 KB, at p 422. Since that time there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings." 57 His Honour observed (at 603) that while ordinarily a declaration is not made that a defendant has committed a crime, there was no doubt that there was jurisdiction to make such a declaration in a proper case: Imperial Tobacco Limited v Attorney-General [1981] AC 718 at 750, Sankey v Whitlam . Thus it was appropriate in many cases for a business person who is told by a regulatory authority that he or she cannot do something to apply for a declaration that the view is erroneous. Conversely, the right was mutual; the Crown could also obtain a declaration that the person's conduct contravened the law. That practice, which was common in New South Wales, had been given the "seal of approval" by the High Court in Australian Softwood .


case_text: Of direct application to the present case is Australian Softwood Forest Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121. The case concerned a pine plantation investment scheme which the Corporate Affairs Commission (NSW) alleged involved the issuing or offering of an "interest" contrary to s 76(1) of the Companies Act 1961 (NSW). The trial judge made a declaration to the effect alleged and granted injunctions. The Court of Appeal dismissed the appeal but said that it was not a proper case for the grant of declarations, which were "little more than prefatory averments to the grant of an injunction". The High Court dismissed the substantive appeal. The parties accepted that an injunction was no longer necessary since the conduct in question was not continuing. The High Court nevertheless granted a declaration substantially to the effect of that granted by the trial judge. 54 The contraventions the subject of the declaration in Australian Softwood carried criminal penalties: Companies Act, s 86(1). Murphy J thought this was a positive reason for the grant of a declaration. Certainly his Honour saw the possibility, indeed desirability, of criminal proceedings as no reason for refusing a declaration. His Honour commenced his judgment as follows at (136): "One of the most widespread and successful of the species of fraud known in Australia and elsewhere as 'the investment racket' is the forest or plantation variety." Later (at 137) his Honour said that the appellant " ... has already procured signatures and acceptances from more than 4000 persons. This represents more than $200,000 in deposits and promises to pay instalments of well over a million dollars. Presumably all those who have been party to offences against the Companies Act in relation to the issues are liable to criminal proceedings, at least with the consent of the Minister (see s 381). In these circumstances, and because the respondent did not press in this Court for the injunction, I agree the relief should be confined to appropriate declarations." 55 In Intertax Fryberg J (at [8]) distinguished Australian Softwood on the ground that the High Court's approval "... was to the proposition that a declaration could be granted notwithstanding that an injunction would not be granted." If by this his Honour meant that the High Court only granted a declaration because, with the consent of the parties, they did not grant an injunction, then I do not agree. Gibbs CJ said (at 125): "With all respect, Hutley JA was not correct in saying that declarations 'are little more than prefatory averments to the grant of an injunction'. In my opinion it was proper to grant a declaration in the present case although it is now agreed that an injunction is not an appropriate remedy." In any case, if it were only appropriate to make declarations where injunctions were not granted, that would not get over the supposed problem of possible "falsification" by subsequent acquittal in criminal proceedings. 57 His Honour observed (at 603) that while ordinarily a declaration is not made that a defendant has committed a crime, there was no doubt that there was jurisdiction to make such a declaration in a proper case: Imperial Tobacco Limited v Attorney-General [1981] AC 718 at 750, Sankey v Whitlam . Thus it was appropriate in many cases for a business person who is told by a regulatory authority that he or she cannot do something to apply for a declaration that the view is erroneous. Conversely, the right was mutual; the Crown could also obtain a declaration that the person's conduct contravened the law. That practice, which was common in New South Wales, had been given the "seal of approval" by the High Court in Australian Softwood .


case_outcome: followed

case_text: In Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 Young J gave detailed consideration to the appropriateness of declarations in respect of breaches of the Companies (New South Wales) Code dealing with prescribed interests and offers to the public. Criminal proceedings were not only possible; they had taken place and the individual primarily involved had been convicted and was serving a term of imprisonment. 59 Transphere does not provide any support for the limitation of the discretion to make declarations in cases like the present; indeed it is to the contrary. 63 Secondly, it is said there must be "a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought": Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448, Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437, Transphere at 605. 64 In the present case the defendants were represented but did not oppose the making of the declarations sought, or indeed any orders sought. Transphere is to an extent comparable in that the defendant in that case appeared and did not oppose the declaration. However, he we not legally represented. Young J (at 605-608) extensively reviewed the case law. His Honour (at 608) accepted the submission that the law as to declaratory judgments had developed to such a stage that declaration should be made unless there are proper grounds to the contrary, subject to the proviso that a "legitimate and powerful" factor against the grant would be the possibility of embarrassment in a practical sense to a non-party. As has been noted ([58] above) his Honour found that in the circumstances of the case before him such embarrassment did exist and on that ground declined a declaration. 68 In the present case, there being no suggestion of any embarrassment to non-parties in the present case, I will follow the principle accepted by Young J in Transphere . 69 I will make the declarations referred to above ([46]), and the following orders: 1. Pursuant to s 1324(1) of the Corporations Act 2001 (Cth) the fifth defendant be permanently restrained whether by himself, his servants or agents or otherwise from further operating or promoting the scheme. 2. Pursuant to ss 1101B and 1324 (1) of the Corporations Act 2001 (Cth) the fifth defendant be permanently restrained whether by himself, his servants or agents or otherwise from: (a) carrying on any business related to, concerning or directed to be a managed investment scheme within the meaning of the Corporations Act 2001 (Cth); (b) being in any way, directly or indirectly, knowingly concerned in or a party to the promotion or establishment of, or the carrying on of the business of, a managed investment scheme within the meaning of the Corporations Act 2001 (Cth); that requires, in any case, registration under s 601ED of the Corporations Act 2001 (Cth) and has not been so registered. 3. Pursuant to ss 1101B and 1324 (1) of the Corporations Act 2001 (Cth) the fifth defendant be restrained, whether by himself, his servants or agents or otherwise from carrying on business in relation to financial products or financial services by: (a) providing financial product advice; (b) dealing in financial products; without holding an Australian financial services licence. 4. The scheme be wound up pursuant to s 601EE(1) of the Corporations Act 2001 (Cth). 5. Pursuant to s 601EE(2) George Georges and Adrian Brown (who were appointed receivers of the property of the scheme and to report on the scheme by Order of Justice Young made 20 July 2006) be appointed joint and several liquidators of the scheme. 6. The liquidators have the power to do, in Australia and elsewhere, all things necessary or convenient to be done for or in connection with the winding up of the scheme, or incidental to the attainment of the winding up of the scheme, including the powers identified in s 477 of the Corporations Act 2001 (Cth) as each reference there to a "company" were a reference to the scheme. 7. The reasonable costs and expenses of the winding up of the scheme be paid out of the assets of the scheme. 8. To the extent that the sum paid to the liquidators under Order 7 is insufficient to meet the reasonable remuneration, costs fees and expenses of the liquidators, any shortfall is to be paid by the fifth defendant. 9. Pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth) the first, second, third and fourth defendants be wound up and that George Georges and Adrian Brown be appointed joint and several liquidators. 10. The restraining orders extended by Order made on 19 December 2006 (and originally made by paragraphs 11 and 12 of the Orders made on 20 July 2006) against the fifth, sixth and seventh defendants be vacated. 11. Paragraph 4 of the Order made on 17 July 2006, that the fifth to seventh defendants deliver up their passports, be vacated and the Registry make any passport delivered up in accordance with the order available for collection by the relevant defendant at the registry office where it is presently held. 12. The fifth defendant deliver his passport to his trustee in bankruptcy forthwith, pursuant to s 77(1)(a)(ii) of the Bankruptcy Act 1966 (Cth). 13. The fifth defendant not leave Australia during the period of his bankruptcy until 7 days after he has given ASIC written notice of his request to his trustee in bankruptcy for consent to leave Australia pursuant to s 272(1)(c) of the Bankruptcy Act 1966 (Cth). 14. The fifth defendant pay the plaintiff's costs of this proceeding including reserved costs. 15. The proceeding be dismissed against the sixth and seventh defendants with no order as to costs. 16. The proceeding otherwise be dismissed. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY. Associate: Dated: Counsel for the Plaintiff M Scott Solicitor for the Plaintiff Australian Securities and Investments Commission Solicitor for the Receivers of the First to Fourth Defendants Dibbs Abbott Stillman Counsel for the Fifth Defendant M Bromley Solicitor for the Fifth Defendant Corrs Chambers Westgarth Counsel for the Sixth and Seventh Defendants N Evans Solicitor the Sixth and Seventh Defendants Baker & McKenzie Date of Hearing: 20 June 2007 Date of Judgment: 29 June 2007 SCHEDULE The "scheme" is the "FUELbanc" scheme pursuant to which: 1. Investors give money and barter units known as "trade dollars" to the first defendant in exchange for a promise to pay weekly instalments into a debit card for use by each investor at service stations. 2. The first to fifth defendants invested or were to invest the money and barter units received from investors to produce the benefit of the credit to be provided on debit cards. . SCHEDULE OF PARTIES AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Plaintiff - and - FUELBANC AUSTRALIA LIMITED (ACN 117 937 327) ("FUELbanc") First Defendant - and - PAYCARDS GLOBAL PTY LTD (ACN 116 759 472) ("PayCards Global") Second Defendant - and - PAYCARDS INVESTMENTS PTY LTD (ACN 118 252 369) ("Paycards Investments") Third Defendant - and - PC PROPERTY GROUP PTY LTD (ACN 118 252 387) ("PC Property Group") Fourth Defendant - and - STEPHEN JOHN MCDOUGALL ("McDougall") Fifth Defendant - and - TIMOTHY ROSS MCDOUGALL ("Timothy McDougall") Sixth Defendant - and - MATTHEW ALAN MCDOUGALL ("Matthew McDougall") Seventh Defendant AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/960.html


case_text: His Honour observed (at 603) that while ordinarily a declaration is not made that a defendant has committed a crime, there was no doubt that there was jurisdiction to make such a declaration in a proper case: Imperial Tobacco Limited v Attorney-General [1981] AC 718 at 750, Sankey v Whitlam . Thus it was appropriate in many cases for a business person who is told by a regulatory authority that he or she cannot do something to apply for a declaration that the view is erroneous. Conversely, the right was mutual; the Crown could also obtain a declaration that the person's conduct contravened the law. That practice, which was common in New South Wales, had been given the "seal of approval" by the High Court in Australian Softwood .


case_title: Australian Securities and Investments Commission v. Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540

case_text: A number of courts have made declarations in cases involving contraventions which carried criminal penalties, albeit with no express discussion of the point raised in Intertax . Nevertheless, the consistent practice is a matter of considerable weight. The cases are: Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540 (Queensland Court of Appeal), Australian Securities and Investments Commission v PFS Business Development Group Pty Ltd (2006) 57 ACSR 553 (Hargrave J, Supreme Court of Victoria), McDougall (Young J, Federal Court), Australian Securities and Investments Commission v Preston [2005] FCA 1805 (Finkelstein J, Federal Court), Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68 (Jones J, Supreme Court of Queensland), Australian Securities and Investments Commission v Young [2003] QSC 29 ; (2003) 21 ACLC 655 (Muir J, Supreme Court of Queensland), Pegasus (Davies AJ, Supreme Court of New South Wales), Australian Securities and Investments Commission v Hutchings (2001) 19 ACLC 1454 (Windeyer J, Supreme Court New South Wales), Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 (Austin J, Supreme Court of New South Wales).


case_title: Australian Securities and Investments Commission v PFS Business Development Group Pty Ltd (2006) 57 ACSR 553


case_title: Australian Securities and Investments Commission v Preston [2005] FCA 1805


case_title: Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68


case_title: Australian Securities and Investments Commission v Young [2003] QSC 29 ; (2003) 21 ACLC 655


case_title: Australian Securities and Investments Commission v Hutchings (2001) 19 ACLC 1454


case_title: Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114


case_text: Two final points. First, declarations will not usually be made when the only material before the Court is the consent of the parties: BMI Limited v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412. As will have been apparent, in the present case ASIC has presented evidence and submissions. 65 One of the authorities discussed by Young J was BMI . In that case Keely and Beaumont JJ (at 413), after referring to what was said by Buckley LJ and Scarman J in Wallersteiner v Moir [1974] 1 WLR 991 at 1029 and 1030 respectively, said: " ... we think that it is generally undesirable that the court should grant relief by way of declaratory orders under s 108 [of the Conciliation and Arbitration Act 1904 (Cth)] in the absence of any contest on the question." Their Honours acknowledged (at 414) that, if it were demonstrated in a particular case that it were necessary that the question be resolved judicially, it may be appropriate for the court to appoint an amicus curiae to put the contrary view, if any, on the facts and on the questions of law which arise. 66 In BMI not only was there no contradictor, but the particular question that was the subject of the proposed declaration had become academic. Moreover, there were a number of contrary arguments on the merits; see 414-415. The Full Court did not propound any binding proposition of law, still less one which would bind single judges deciding cases under investor protection provisions of corporations legislation. 67 The suggestion of retaining counsel to put a contrary argument as amicus curiae raises the practical question as to who should foot the bill. Certainly it would be unreasonable to impose on the generosity of counsel who have volunteered for pro bono schemes. It is no function of the Court itself to expend money on filling a supposed gap in the range of arguments presented to it by the parties. And ASIC has limited public funds to spend on its important law enforcement functions.


case_text: Secondly, it is said there must be "a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought": Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448, Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437, Transphere at 605.


case_text: There is high authority against the supposed limitation on the exercise of the discretionary power to grant declaratory relief. In Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 the High Court, in respect of then current committal proceedings (ie actual, not hypothetical, criminal proceedings) made declarations that (i) certain documents were privileged from production and that (ii) the information laid against Mr Whitlam was bad in law. Gibbs ACJ said at 20-21: "It is well established that the power of the court to make a declaration, under a provision such as s 75 of the Supreme Court Act 1970 (N.S.W.), as amended, or O. 26, r. 19 of the Rules of this Court, is a very wide one: Forster v. Jododex Aust. Pty. Ltd . [1972] HCA 61 ; (1972) 127 CLR 421, at pp 435-436 . It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings. Indeed in Dyson v. Attorney-General [1911] 1 KB 410, which is one of the foundations of the law on this subject, it was held that the court had power to make a declaration that the plaintiff was not under any obligation to comply with the requisitions contained in a notice sent to him by the Commissioners of Inland Revenue, notwithstanding that neglect to comply with the notice was an offence see especially per Farwell L.J. [1911]1 KB, at p 422. Since that time there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings." 63 Secondly, it is said there must be "a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought": Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448, Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437, Transphere at 605.


case_title: Wallersteiner v Moir [1974] 1 WLR 991

case_text: One of the authorities discussed by Young J was BMI . In that case Keely and Beaumont JJ (at 413), after referring to what was said by Buckley LJ and Scarman J in Wallersteiner v Moir [1974] 1 WLR 991 at 1029 and 1030 respectively, said: " ... we think that it is generally undesirable that the court should grant relief by way of declaratory orders under s 108 [of the Conciliation and Arbitration Act 1904 (Cth)] in the absence of any contest on the question." Their Honours acknowledged (at 414) that, if it were demonstrated in a particular case that it were necessary that the question be resolved judicially, it may be appropriate for the court to appoint an amicus curiae to put the contrary view, if any, on the facts and on the questions of law which arise.


case_outcome: referred to

case_text: As to the fact that the appellant was not aware of the Tribunal hearing, Raphael FM referred to Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 , where the Full Court noted that, before an omission or an action can properly be said to have occasioned a fraud on a Tribunal, it must itself be properly characterised as a fraudulent omission vis-à-vis the visa applicant. His Honour observed that there was a simple explanation why the appellant was not informed of the date of the hearing. It was because he had not told Mr Shi his new address. His Honour did not infer fraud arising from that fact.


case_text: The question of whether or not there was such fraud on the Tribunal rests essentially on the findings of fact made by the Federal Magistrate. The appellant seems to be relying upon SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189. 3 The appellant has had two migration agents advise him. A further particular of his ground of appeal is that Raphael FM failed to conduct a complete investigation into whether or not his second migration agent fulfilled his duty as legal representative. 4 The appellant's evidence before Raphael FM was that his first migration agent, Mr Shi, had concocted his protection visa claims. He says that he told Mr Shi that he was a Falun Gong practitioner and feared harm in China for that reason. The appellant says that Mr Shi completed the statement accompanying the appellant's protection visa application which stated that he had been the head chef at his workplace, had refused a request for a false receipt from some public servants, had complained to the authorities about the corruption, was warned by the head of the company to cease his involvement and was stood down and the accounts he managed audited. The appellant accepts that Mr Shi made the application on his behalf but says that he did not sign it, he did not know what was in it, he was not advised about the progress of the application, of the application for review of the delegate's decision, of the invitation to attend a hearing or of the Tribunal's decision. 16 In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J considered fraud by an agent in the context of a Tribunal hearing. In that case, the appellant's signature had been falsely placed on the document and part of the appellant's statement had been made up. Justice Besanko said at [37] that those facts may go some way towards establishing fraud but that it is still necessary for the appellant to show that the fraud has affected the process described by the Migration Act 1958 (Cth). In this case, the matters raised by the appellant, namely: • the fact that Mr Shi signed the form in the context of an authority to act; • the fact that the appellant had not notified Mr Shi of his new address; and • the fact that Mr Shi failed to tell the appellant about the Tribunal hearing; do not constitute fraud on the Tribunal within the meaning of SZFDE and there is not sufficient evidence to support such a conclusion.


case_text: In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J considered fraud by an agent in the context of a Tribunal hearing. In that case, the appellant's signature had been falsely placed on the document and part of the appellant's statement had been made up. Justice Besanko said at [37] that those facts may go some way towards establishing fraud but that it is still necessary for the appellant to show that the fraud has affected the process described by the Migration Act 1958 (Cth). In this case, the matters raised by the appellant, namely: • the fact that Mr Shi signed the form in the context of an authority to act; • the fact that the appellant had not notified Mr Shi of his new address; and • the fact that Mr Shi failed to tell the appellant about the Tribunal hearing; do not constitute fraud on the Tribunal within the meaning of SZFDE and there is not sufficient evidence to support such a conclusion.


case_text: Again, I can understand that persons with ties to a particular community, running a school, and of a minority religion, although a substantial minority, would be disappointed by the result on this issue. However, I can find no jurisdictional error in the way in which the Tribunal approached the matter. NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 is a decision which is relatively favourable to appellants in situations like this but, even approaching the matter on the basis of Branson J's judgment in that matter does not, it seems to me, establish jurisdictional error in the present case. 8 This case illustrates the difficulties both of applicants for visas and of tribunals in dealing with those applications in deciding important issues without the usual forensic advantages. The appeal is dismissed. The appellants are to pay the costs of the first respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 12 March 2008 The Appellants appeared in person Counsel for the First Respondent: Mr J Mitchell Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 5 March 2008 Date of Judgment: 5 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/311.html


case_text: There was a second and independent ground for rejecting the claim for protection visas by the Tribunal what is generally referred to as the relocation principle. The Tribunal was satisfied that it was reasonable to expect the appellants to live elsewhere other than in the particular place and avoid the harm they fear. In coming to that view the Tribunal referred to the well-known authority of Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The Tribunal gave detailed reasons for coming to the conclusion that it reached and it seems to me that it involved two aspects. The first was that there would be protection in other parts of India and, secondly, that it was reasonable and practicable for these particular appellants to so relocate.


case_outcome: related

case_text: This is an application for an extension of time to file and serve a notice of appeal from a decision of the Federal Magistrates Court delivered on 17 October 2007 ( SZKAW v Minister for Immigration & Anor [2007] FMCA 1763). That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal unfavourable to the applicant. There are no grounds stated in the application for an extension of time but there is a draft notice of appeal. The grounds of appeal are as follows: "1. The Tribunal made jurisdictional errors(s) while deciding on Applicant Protection Visa Application review case which are stated as under. 2. The applicant fear serious harm for religious reason his fear of persecution are well founded and that the Tribunal should have given the applicant every opportunity in accordance to the migration" 2 The orders sought are as follows: "1. The Tribunal made Jurisdicti [sic] error(s) while deciding on Applicant Protection visa. 2. The Tribunal did not fully understand Applicant's unfortunate circumstances in which he had to flee his country Pakistan for his well founded and convention based fear of persecution." 3 The respondent opposes the application on the basis that there is no prospect of success on the appeal and further points out that no special reason has been advanced as to why an extension should be granted to justify departure from the ordinary rule prescribing a period within which an appeal must be filed and served. The delay is not great in the present case but I have a clear view that the first basis of opposition is established. 4 The grounds of this application are deficient. There is no identification of error by the learned Federal Magistrate which would amount to appellable error. Furthermore, when I turn to the reasons for judgment of the Federal Magistrates Court, I see that the ground for the judicial review of the decision of the Tribunal did not, in itself, state any proper ground. It is quoted as being as follows: "I want this Court to ask RRT to heard [sic] my case again because I think they didn't judge my circumstances" 5 The learned Federal Magistrate extended significant leniency to the applicant by going through and, as it were, setting out possible arguments and rejecting them. I pointed out to the applicant at the commencement of the proceeding that no ground had been identified in the notice of appeal and that, that point having been taken, he should address the problem. I realise, of course, that with an unrepresented party of this character of his background, it is almost impossible for him to add to the written material. The fact remains that an applicant for leave must abide by the normal rules and show at least an arguable ground of appeal, together with the explanation for delay. The applicant simply sought another hearing before the Refugee Review Tribunal so that it could hear the matter properly.


case_title: Ayres v Chacos (1972) 19 FLR 468

case_text: Such language as "may only" in legislation is indicative of a need to comply with a set time limit, although not conclusive (see, for example, Bond v WorkCover Corporation of South Australia (2005) 93 SASR 315). However it is of some use to contrast the language in s 74B EPBC Act with that in s 459G Corporations Act , and similarly, for example, with: • the legislation considered in Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 which provided that an application to renew a mining licence was required to be made "during the currency of such license... and not later than one month before the expiry of such license". In that case the High Court interpreted the legislation to mean that a valid application had to comply strictly with prescribed time limits; and • the relevant section of the Liquor Ordinance 1929 (ACT) considered in Ayres v Chacos (1972) 19 FLR 468, which provided that "An applicant for the grant, removal or transfer of a licence...shall, not less than twenty-one days before making the application, give notice in writing to the Registrar and to an Inspector...". In the circumstances of that case Joske J held that the Licensing Court had no jurisdiction to deal with an application made on a period of notice less than the period of 21 clear days. 47 I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: • the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or • the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E & B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).


case_text: However it is equally clear that the 20 business day time period stipulated by s 74B is intended to "spur [the Minister] to action, not to limit the scope of his authority" ( Brock v Pierce County [1986] USSC 96 ; 106 S Ct 1834 (1986) at 1841, cf Barnhart v Peabody Coal Co 123 S Ct 748 (2003) at 755). The EPBC Act recognises that, notwithstanding the time limits specified for the making of decisions, decision-making within such time limits may not always be achievable. The effect of s 156(3) and s 518(1) is to validate decisions made after the expiry of the time stipulated by the Act, including decisions made under s 74B.


case_text: Such language as "may only" in legislation is indicative of a need to comply with a set time limit, although not conclusive (see, for example, Bond v WorkCover Corporation of South Australia (2005) 93 SASR 315). However it is of some use to contrast the language in s 74B EPBC Act with that in s 459G Corporations Act , and similarly, for example, with: • the legislation considered in Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 which provided that an application to renew a mining licence was required to be made "during the currency of such license... and not later than one month before the expiry of such license". In that case the High Court interpreted the legislation to mean that a valid application had to comply strictly with prescribed time limits; and • the relevant section of the Liquor Ordinance 1929 (ACT) considered in Ayres v Chacos (1972) 19 FLR 468, which provided that "An applicant for the grant, removal or transfer of a licence...shall, not less than twenty-one days before making the application, give notice in writing to the Registrar and to an Inspector...". In the circumstances of that case Joske J held that the Licensing Court had no jurisdiction to deal with an application made on a period of notice less than the period of 21 clear days.


case_text: I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: • the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or • the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E & B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).


case_title: Brock v Pierce County [1986] USSC 96 ; 106 S Ct 1834 (1986)


case_text: The issue raised in submission by the applicant is encapsulated historically in the Latin maxim generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail). In my view the submission can be dealt with quickly. The rule of construction inherent in this maxim has its place only where contrariety is manifest: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 52-53, Butler v Attorney-General for the State of Victoria [1961] HCA 32 ; (1961) 106 CLR 268 at 276; R v Kearney; Ex parte Japanangka [1984] HCA 13 ; (1984) 158 CLR 395 at 421. In this case there is no inherent conflict between the operation of s 74B (or indeed Ch 4 Pt 7 Div 1A) on the one hand, and either s 156(3) or s 518(1) on the other. (I will address the applicant's submissions as to the interplay of s 74B and other provisions of Ch 4 Pt 7 later in this judgment.) The enactment of Div 1A subsequent in time to that of s 156(3) and s 518(1) gives rise to no inconsistency.


case_text: As Mahoney JA observed in Hatton v Beaumont (1977) 2 NSWLR 211 at 225: The administration of the law would be facilitated if, in the formulating of legislation, attention were given as a matter of routine to this question. If this were done by a specific indication in the particular enactments of the effect of non-compliance with its provisions...or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statute, the cases of the present kind would be, if not avoided, at least greatly reduced in number. (cf Helman v Byron Shire Council (1995) 87 LGERA 349 at 355, Ceric v CE Heath Underwriting and Insurance (Australia) Pty Ltd [1993] NTSC 86 ; (1993) 91 NTR 26 at 39)


case_title: Charles v Judicial and Legal Service Commission [2002] UKPC 34


case_outcome: considered

case_text: The submissions of Mr Walker SC, who appeared for the applicant in these proceedings, may be summarised as follows: 1. The legislative provision pursuant to which the Minister made his decision was s 74B EPBC Act. 2. The validity of s 156(3) and s 518(1) EPBC Act as statutory provisions is not in contest, however in relation to the application of these sections s 74B is distinguishable from such provisions as ss 75, 88 and 130 because: a) section 74B does not impose any obligation on the Minister to make a decision of the kind referred to in those other sections; b) the operation of s 74B is conditional upon a decision of the Minister which satisfies s 74B(1), namely a decision of a particular description which is made within 20 business days after the Minister receives the referral. 3. Section 156(3) and s 518(1) are concerned with the validity of decisions which there is an obligation to make. 4. The construction of s 74B urged by the Minister leads to absurd results because it places s 74B in conflict with other provisions of the EPBC Act. 5. A continuing right to make a decision under s 74B cannot co-exist with the alternative and inconsistent procedure under s 75 and s 87 EPBC Act. 6. If s 156(3) and s 518(1) are capable of applying to a decision purportedly made by the Minister under s 74B more than 20 business days after the receipt of a referral, it should be concluded that s 74B(1) evinces an intention to exclude the prima facie operation of those provisions. 7. The principles articulated in David Grant & Co Pty Ltd v Westpac Banking Corporation Ltd (1995) 184 CLR 265 apply to this case. 8. Section 74B and Ch 4 Pt 7 Div 1A EPBC Act were inserted as part of a new process designed to enable the Minister to make a "prompt refusal" for a proposed action that would be clearly unlikely to receive approval under the other provisions of Ch 4. To treat a decision made any time outside the 20 business days referred to in s 74B(1) as effective to invoke s 74B(2) would be to dispense entirely with the "prompt refusal" rationale of the provision. This would be in direct conflict with the evident statutory purpose of s 74B and must be rejected by reason of s 15AA Acts Interpretation Act 1901 (Cth). 30 The applicant has also submitted that s 156(3) and s 518(1) do not apply to s 74B because, paraphrasing an issue posed in David Grant (1995) 184 CLR 265: [T]he difficulty in construction arises, perhaps not so much from the particular text of either [s.74B] or [ss.156(3) and 518(1)], as from the interrelation between those...provisions in circumstances where the enactment of [ss.156(3) and 518(1)] preceded that of [s.74B], and the earlier section is general and the later section is specific in its operation. 39 First, there is nothing in the language of s 74B which suggests that making a decision within 20 business days is a condition of validity of a decision made under that section. This can be contrasted with, for example, the language of s 459G Corporations Act 2001 (Cth) to which the applicant referred in submissions, and which was the subject of consideration by the High Court in David Grant (1995) 184 CLR 265. Section 459G Corporations Act 2001 (Cth) provides: (1) A company may apply to the Court for an order setting aside a statutory demand served on the company. (2) An application may only be made within 21 days after the demand is so served. (3) An application is made in accordance with this section only if, within those 21 days: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application and a copy of the supporting affidavit, are served on the person who served the demand on the company. 40 In David Grant (1995) 184 CLR 265 the High Court observed at 276-277: In providing that an application to the court for an order setting aside a statutory demand "may only" be made within the 21 day period there specified and that an application is made in accordance with s 459G only if, within those 21 days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attach a limitation or condition upon the authority of the court to set aside the demand. In this setting, the use in s 459G(2) of the term "may" does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether "may" is used in a facultative and permissive sense or an imperative sense (13). Here, the phrase "(a)n application may only be made within 21 days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil (14), it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3). This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word "only" in s 459G(2) if it does not mean what it says, which is that the application is to be made within 21 days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of 21 days specified in s 459G would deprive the word "only" of effect (15). 47 I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: • the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or • the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E & B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).


case_title: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421


case_title: Hatton v Beaumont (1977) 2 NSWLR 211

case_text: As Mahoney JA observed in Hatton v Beaumont (1977) 2 NSWLR 211 at 225: The administration of the law would be facilitated if, in the formulating of legislation, attention were given as a matter of routine to this question. If this were done by a specific indication in the particular enactments of the effect of non-compliance with its provisions...or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statute, the cases of the present kind would be, if not avoided, at least greatly reduced in number. (cf Helman v Byron Shire Council (1995) 87 LGERA 349 at 355, Ceric v CE Heath Underwriting and Insurance (Australia) Pty Ltd [1993] NTSC 86 ; (1993) 91 NTR 26 at 39) 43 However in any event, and more compellingly in relation to s 74B, neither the purpose nor the structure of Ch 4 Pt 7 as a whole support a construction of s 74B that a decision made under that section after the expiration of 20 business days is invalid. Although the legislative purpose in enacting Div 1A was to facilitate a prompt refusal by the Minister of an action which would have unacceptable environmental impacts, the legislation does not support an interpretation that a decision made by the Minister on, for example, the 21st business day after the referral would not be of equal validity to a decision made within the prescribed time period. The event upon which the operation of the section depends is the prompt making of a decision by the Minister that the proposed action will have unacceptable environmental impacts, not the passage of 20 business days. In other words the making of a decision of the Minister is critical the time period of 20 business days, while relevant to the making of the decision, does not determine its validity (cf Hatton v Beaumont (1977) 2 NSWLR 211 at 224). To paraphrase the learned authors of Administrative Law in Australia , to which I referred earlier in this judgment, the provision as to time in s 74B simply regulates a function which has already been conferred on the decision-maker, namely that of making a decision in the circumstances described in s 74B(1)(a) EPBC Act. 44 Explanation as to the legislative purpose of Ch 4 Pt 7 Div 1A (including s 74B) can be found in the Explanatory Memorandum to the Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth) which inserted Ch 4 Pt 7 Div 1A into the EPBC Act. So far as relevant the Explanatory Memorandum provides as follows: 78. This item inserts new Division 1A of Part 7 of the Act. Division 1A establishes a new process that allows the Minister to make a prompt refusal for an action that would have unacceptable impacts on a matter protected by Part 3 of the Act. This avoids the expense and time involved in conducting the full assessment and approval process under Chapter 4 for actions that would be unlikely to receive approval under Part 9 of the Act. The scope and process for making a prompt refusal is established in three new sections of the Act ¬ 74B, 74C, and 74D. 79. If the Minister considers that an action would have unacceptable impacts on a matter protected under Part 3 of the Act on the basis of the information contained in a referral then the Minister may decide under s 74B that Division 1A applies to the action. The other provisions of Chapter 4 (referral assessment and approvals processes) then cease to apply to the action. Under s 74C the Minister must then notify the person proposing to take the action and provide reasons why the action is unacceptable. The person may withdraw the referral, withdraw the referral and refer a new proposal, or request the Minister to reconsider the referral. 80. New s 74D outlines the process to be followed in the event the Minister is asked to reconsider the referral. At the completion of this process the Minister may either confirm that the action is not to be approved, or determine that it should be subject to the formal assessment and approvals processes under the Act. If the Minister decides that the referral should be assessed, the Chapter 4 processes and timeframes recommence at the point where they were initially stopped under s 74B of the Act. 45 Significantly, I note that the Explanatory Memorandum makes no mention of the 20 business day time period, nor is any importance attached to that period of time. Consistently with the proposition that it is the making of the decision which is critical, the Explanatory Memorandum refers to promptitude, and the avoidance of expense and time otherwise applied in making a full assessment.


case_title: Helman v Byron Shire Council (1995) 87 LGERA 349


case_title: In re Petition of Douglass 46 NY 42 (1871)


case_outcome: applied

case_text: The submissions of Mr Gotterson QC, who appeared for the Minister in these proceedings, may be summarised as follows: 1. Section 156(3) and s 518 are express provisions in the EPBC Act which put beyond doubt that it is clearly not a purpose of the EPBC Act that an act done outside a time period set by the EPBC Act should be invalid. 2. Even apart from those provisions, the same result is achieved by applying the approach to statutory interpretation as articulated in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355. 3. The purpose of Ch 4 Pt 7 Div 1A EPBC Act, which was inserted into the EPBC Act in 2006 by the Environmental and Heritage Legislation Amendment Act (No 1) 2006 , was explained in the Explanatory Memorandum accompanying that legislation. 4. Section 75 and s 88 also call for "prompt" decisions to be made. 5. Importantly, a prompt refusal under s 74B avoids the expense and time involved in conducting the full assessment and approval process for an action that is unlikely to receive approval. 6. The construction of s 74B advanced by the applicant risks substantial frustration of the ultimate purpose of s 74B. 7. On the applicant's argument once the 20 business days have elapsed the Minister must proceed to make decisions under ss 75, 87 and 88 even if the Minister considers the proposed action will have unacceptable environmental impacts. This is precisely what s 74B was intended to avoid. 8. The real condition precedent to the application of Ch 4 Pt 7 Div 1A is the formation of the opinion by the Minister. While the Minister is obliged and required to act within the time specified in s 74B, it does not follow that the consequence of a late decision is that it is invalid and of no effect. 25 In my view, substantially for the reasons advanced by Mr Gotterson QC on behalf of the Minister, the application must fail. 26 Notwithstanding the detailed submissions of the applicant, a plain reading of the EPBC Act demonstrates clearly that failure of the Minister to comply with a time limit prescribed by the EPBC Act does not affect the validity of a decision under the Act made outside a set time limit, including decisions made under s 74B. No contortion of the legislation or speculation as to the manner in which s 74B is to be construed in the broader context of Ch 4 Pt 7 detracts from the natural and ordinary meaning of the words in s 156(3) and s 518(1) EPBC Act. That the failure of the Minister to comply with a time limit set by the EPBC Act does not affect its validity is clear not only in relation to any action of the Minister under the Act as a whole (s 518(1)), but, in my view crucially, is clear in relation to any decision made by the Minister under Ch 4 EPBC Act (s 156(3)). Although the legislation reflects an apparent duplication so far as concerns decisions under Ch 4 (which, presumably, would also fall within the scope of actions of the Minister for the purposes of s 518(1)) the effect of that duplication is to remove any doubt as to the validity of decisions made under Ch 4, including those in Pt 7 Div 1A and more specifically s 74B, notwithstanding a failure to comply with a set time limit. 35 However putting to one side for the moment my views concerning the application of s 156(3) and s 518(1), I consider that in any event the legislative purpose of the EPBC Act is that a decision made by the Minister under s 74B more than 20 business days after receipt of a referral will be valid. This is clear from applying the principles articulated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , as well as taking into consideration the explanation of Ch 4 Pt 7 Div 1A in the Explanatory Memorandum accompanying that Division introduction into the EPBC. 36 The majority of the High Court observed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355: an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. (at 388-389, cf at 390-391) 37 As was observed in commentary on Project Blue Sky (1998) CLR 355 (in my view correctly): On this approach...there is a fundamental difference between a provision which simply regulates a function which has already been conferred on the decision-maker and a provision which establishes an essential pre-condition to the valid exercise of the function. (Lane WB and Young S, Administrative Law in Australia (Lawbook Co, 2007) at 133) 38 Applying the principles articulated in Project Blue Sky [1998] HCA 29 ; (1998) 194 CLR 355 to the facts of the case before me, an important question is whether the legislative purpose of the EPBC Act is that a decision made by the Minister under s 74B more than 20 business days after the referral is received is invalid, taking into account the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 46 Historically there is a wealth of authority supporting the principle that failure to perform an act within time limits prescribed by legislation does not necessarily invalidate the act notwithstanding that it is made after the expiration of that time limit. While these cases, and the extent to which the courts applied the traditional distinction between directory and mandatory requirements, must be read in light of the test for determining validity articulated in Project Blue Sky [1998] HCA 29 ; (1998) 194 CLR 355 , nonetheless it is useful to note that traditionally: where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time. Thus, the 13 Hen. IV. (c.7), which required justices to try rioters "within a month" after the riot, was held not to limit the authority of the justices to that space of time, but only to render them liable to a penalty for neglect. (Maxwell Sir PB, The Interpretation of Statutes (8th ed by Sir GHB Jackson, Sweet & Maxwell, London, 1937) at 326) (footnotes omitted)


case_title: R v Kearney; Ex parte Japanangka [1984] HCA 13 ; (1984) 158 CLR 395


case_title: R v Soneji [2005] 3 WLR 303


case_title: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45


case_title: Jess v Scott (1986) 12 FCR 187

case_text: Whether or not to grant an extension of time within which to appeal is a matter for the exercise of a discretionary power conferred by O 52 r 15(2). The terms in which that rule confers the discretionary power are such that the only consideration which is expressed to be relevant to its exercise is that "special reasons" must exist. Obviously enough, those "special reasons" must be found in the circumstances of the particular case. Something in the circumstances of one case that provides a "special reason" distinguishing that case from the general position may not when considered against the different context of the circumstances of another. The occasion for the exercise of the power is thus flexible. In Jess v Scott (1986) 12 FCR 187 , at 196 the Full Court, after a review of authority, repeated a cautionary note which had earlier been sounded against the entanglement of a discretionary power to relax the requirement of a general rule, " in a web of rules spun out of the Court's discretionary decisions ". 8 This cautionary note sounded, factors to which it is nonetheless usual to have regard are the length of the delay in compliance with the specified time for the lodgement of a notice of appeal, the explanation, if any, for the delay, what prejudice, if any, might be occasioned by the grant of an extension (although mere absence of prejudice is not determinative) and the merits of the proposed appeal. 9 The Applicant was represented (using the relevant letterhead as a guide) by a dual qualified solicitor and migration agent in the proceedings before the Tribunal and by that same person, acting in her capacity as a solicitor, as well as counsel in the proceedings before the Federal Magistrates Court. He appeared on his own behalf in the application to this Court, assisted by a Court appointed interpreter.


case_text: In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 , at [7] the Full Court gave a reminder that the purpose for which the discretion to extend time is conferred is to do justice between the parties observing of an example where the delay was short and no injustice would be occasioned to a respondent that justice would usually be done if the extension of time were granted. 15 There could be no shorter delay than that presented in this case. No prejudice to the Minister was asserted. In such circumstances the question of the applicant's prospects of success in the proposed appeal has a determinative quality in relation to the exercise of the discretion to extend time. 16 Only one ground of appeal is specified in that draft notice of appeal. That is that the learned Federal Magistrate erred in failing to find the following alleged jurisdictional error: "I have been a Falun Gong practitioner since 1999. I persecuted by the Chinese authorities. I presented the documents: "Labour Reform Relief Assessment Form" and "[Named] People's Hospital Diagnosis" issued by the official authorities were not accepted by the Tribunal. I think the Tribunal has bias against me. The Tribunal didn't take my claims into account. The Tribunal fell into jurisdictional error." [sic, omitting name of particular hospital] 17 The way in which the Applicant has formulated his ground of challenge reflects his lack of legal training. That does not mean that it fails to state a ground of challenge known to law. The Minister apprehended that the essence of the desired appeal was that the Federal Magistrates Court had erred in failing to set aside the Tribunal's decision on the basis that a reasonable apprehension of bias on the part of the Tribunal had been shown. This seems to me to be a fair way to approach the matter, especially having regard to the ground of review particularised in the amended application lodged in the Federal Magistrates Court. 18 In the amended application to the Federal Magistrates Court the apprehended bias ground was pleaded in this way: "1. The Tribunal fell into jurisdictional error in that the Tribunal denied the applicant procedural fairness by reason of there being a reasonable apprehension of bias. PARTICULARS (a) The fact-finding by the Tribunal was performed in a manner which in major respect was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision. (b) The findings of fact to which the fair-minded and informed person might reasonably have regard in forming the apprehension include: 1. The finding that the applicant has learned a few basic facts about the movement (that being Falun Gong). 2. The finding that the applicant had no apparent knowledge or understanding of the philosophy of Falun Gong. 3. The finding that the applicant had no apparent knowledge or understanding of how it was that practising Falun Gong achieved the benefits and outcomes claimed by practitioners. 4. The applicant had no apparent understanding of the key concept of "truthfulness, benevolence and forbearance". 5. The finding that the applicant had ample opportunity at the hearing to demonstrate his knowledge and/or understanding of Falun Gong. 6. The applicant's discussion of Falun Gong was trite and shallow. 7. The finding that the applicant's account shows that he had given seemingly low priority to Falun Gong in Australia. 8. The finding that the Applicant had changed his evidence in relation to why he had stopped exercising in a park. 9. The finding that the applicant's claim to have participated rather than just observed a singing performance in support of withdrawing from the Communist Party had evolved in response to the Tribunal's questions. 10. The finding that there was a change in evidence in relation to the applicant's contact with Falun Gong practitioners in Australia. 11. The finding that the information contained in the purportedly corroborative documents of the applicants claim as to having been sent to labour reform for detention for one year and suffered injury whilst detained are not genuine and that the Tribunal gives no weight to the documents. 12. The finding that the applicant's failure to advise the Department of the purportedly corroborative documents and the conclusion that the applicant did not hold the documents in October 2006 and that he concocted this claim as to having held the documents at that time. 13. The findings in relation to the document from the [the particular named] People's Hospital to the effect that as the document does not show how the injury came about it went against the claim that he was injured in the way he described. 14. The findings in relation to the applicant's differing statements as to his recollection of one of the names of the policeman who had struck him in May 2002. 15. The findings that the explanation by the applicant as to what happened to the persons who were detained and assaulted with him in May 2002 changed during the hearing thus suggesting that the applicant was fabricating claims and details as he gave evidence at the hearing. 16. The findings in relation to the two day difference appearing in the Labour Reform Relief Assessment Form and the finding that the applicant had dissembled in relation to the date of his detention. 17. The finding that the Tribunal's conclusions were reinforced by the applicant's arrangements to depart China. 18. The finding that there was a difference in the claims made in relation to how the applicant obtained his passport, such that it supported a finding that the applicant was fabricating claims and details as he gave evidence at the hearing. 19. The reliance on the passport being stated as having been issued on 21 January 2005, when the applicants claim was that the passport had been illegally obtained and the Tribunal elsewhere in the Decision accepted the prevalence of the irregular or improper issue of documentation. 20. The rejection of any need to consider whether the applicant or his wife had to get the assistance of a "connection" to get his passport on the basis that the Tribunal did not accept that the applicant was a Falun Gong practitioner known to the authorities. Yet the Tribunal relied on the applicants travel arrangements to find reinforcement for its conclusions concerning his Falun Gong practice. 21. The finding that the Tribunal did not accept that the applicant has had any association with the Falun Gong movement in Australia or has practised Falun Gong in Australia despite, and the failure to have regard to the evidence from the applicant's migration agent that she only represents applicants who claimed to have been Falun Gong practitioners on referral from known Falun Gong practitioners in Australia." (Emphasis by italics in original)


case_text: Prior authority counsels that to overturn a decision even on the basis of apprehended bias is no light thing: Re Lusink; Ex Parte Shaw (1980) 55 ALJR 12 , at 14B (Gibbs ACJ); s 140 (2) of the Evidence Act 1995 . It is also salutary to remember that the (in this case) administrative officer in respect of whose decision such an allegation is made is not heard from when the merits of that allegation fall for hearing and determination.


case_text: The decision made by the Tribunal was administrative, not judicial, in character. The governing principle is not in doubt, nor was it below, as the reasons for judgment of the learned Federal Magistrate reveal. An authoritative statement of principle is to be found in the judgment of the Full Court of the High Court (Gleeson CJ, Gaudron and Gummow JJ) in Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 , at 983, [5]: It was held in Re Refugee Review Tribunal; Ex Parte Aala that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia that such a failure would extend to cases in which apprehended bias is established. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover ... regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned. (Internal footnote references omitted). 22 And later in that same case: The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof: Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR at 990, [27] [28] (Again, internal footnote references omitted) 23 The test then is one of objective possibility. 24 Applying that test to the circumstances of this case, I have reached the conclusion that the learned Federal Magistrate erred in dismissing the challenge to the Tribunal's decision. The explanation of that conclusion requires an analysis in some detail of the nature of the claim for a protection visa made by the Applicant, of how the Tribunal dealt with that claim and of the reasons for judgment below. 25 At the heart of the Applicant's visa claim was his asserted adherence to the tenets and practices of the Falun Gong movement, his consequential experiences in China since July 1999 when that movement became the focus of what he stated was a campaign by the public security authorities to eradicate it and an asserted, consequential fear of persecution in the event of his return to China. He related his experiences in his visa application and related supporting materials as well as in oral evidence before the Tribunal. 26 Two of these alleged experiences in particular should be noted.


case_text: That it is no part of the jurisdiction consigned to the Federal Magistrates Court to reach its own conclusion with regard to the merits of the applicant's protection visa application is unquestionably correct. A fortori that is so in this Court on appeal. It is axiomatic that the limits of the role consigned to a court conducting the judicial review of an administrative decision must firmly be kept in mind and respected in a principled way. The definitive, contemporary, Australian exposition in this regard is that offered by Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1 , at 35-36. "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 45 Yet the solicitation made in the Applicant's judicial review application was not for the court to reach any conclusion at all on the merits of his protection visa application. Rather, it was objectively to examine in their totality the findings which the Tribunal had made in reaching its conclusion and the reasons for those findings in light of the material before the Tribunal, including the way in which those reasons were expressed. Viewed in this context, collectively and cumulatively, not individually, what this was said to reveal was a tendency or predisposition towards a particular result, an objective possibility of bias. This is the end to which paragraph "a" of the particulars given under ground 1 of the judicial review application is directed. 46 There is no necessary antipathy between the advancing of such an apprehended bias case and a concession that, viewed in isolation, one of many findings of an administrative tribunal might reasonably have been made.


case_text: Given the role consigned to the Tribunal by the Migration Act 1958 and the nature of the case of apprehended bias that the applicant sought to make, the following passage from the judgment of Allsop J (as his Honour then was), Moore and Tamberlin JJ agreeing, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 is, subject to one necessary qualification arising from the particulars of challenge in the present case, apposite: "17 To identify the obligation of the Tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: Ebner at 345 at [7]. 18 Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws at 90; Ebner at 343-44; Jia Legeng at 563-64. 19 Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Jia Legeng at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality." (Internal footnotes omitted).


case_text: Given the role consigned to the Tribunal by the Migration Act 1958 and the nature of the case of apprehended bias that the applicant sought to make, the following passage from the judgment of Allsop J (as his Honour then was), Moore and Tamberlin JJ agreeing, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 is, subject to one necessary qualification arising from the particulars of challenge in the present case, apposite: "17 To identify the obligation of the Tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: Ebner at 345 at [7]. 18 Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws at 90; Ebner at 343-44; Jia Legeng at 563-64. 19 Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Jia Legeng at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality." (Internal footnotes omitted). 49 An apprehended bias case has, as Hayne J noted in Minister for Immigration v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 564, [185] , "several distinct elements at its roots": "First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case." In an apprehended bias case a conclusion that it is objectively possible that these elements are present is sufficient to establish a want of procedural fairness grounded in an apprehension that the decision maker was biased. That conclusion does not carry with it the additional conclusion that the decision-maker was in fact biased. It is whether there is such an objectively discernable possibility, not the thought processes of the decision-maker, which must be the focus of inquiry. 50 There is an inherent tension between a finding on the one hand that "The Tribunal does not accept that the applicant is a Falun Gong practitioner at all, or has any association with the movement in Australia ," (emphasis added) and, on the other that " The tribunal does not accept that the applicant's apparent association with [a successful, Falun Gong practitioner , protection visa applicant] shows that he is a Falun Gong practitioner" (emphasis added). 51 The Tribunal had before it direct evidence from Miss Byers, which it did not find unworthy of credit, to the effect that: (a) the applicant had come to her on referral from a known Falun Gong practitioner; (b) the referrer had successfully satisfied the Tribunal (differently constituted) that he was indeed a Falun Gong practitioner; (c) in Falun Gong claimant related cases, she only acted for those referred by a Falun Gong practitioner, not those who came "directly off the street". 52 It has been said that there is no error of law merely in making a wrong finding of fact. Likewise, it may be accepted that an administrative tribunal is not obliged to refer in its reasons to every item of evidentiary material placed before it and that its reasons should not be read narrowly and with an eye for error. In this case, the Applicant did have an association with a particular individual. So much was "apparent" to the Tribunal. Further, the Tribunal knew, because it was expressly told, that this particular individual had been accepted by the Tribunal (differently constituted) as a member of the Falun Gong movement in Australia. It was not correct to find that the Applicant had no association at all with the movement in Australia. The Applicant's assertion of his association with the known practitioner was corroborated by the evidence from his migration agent. The Applicant's evidence was that the nature of the association was not that of social acquaintance but rather that of fellow adherents. His migration agent's evidence also at least raised for consideration an inference that this was indeed the nature of the association. "Objectified" though through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia Legeng at 564; Johnson v Johnson (2000) 201 CLR 488 , 493, it is quite possible to regard this error of fact and the omission to consider the ramifications of the asserted nature and quality of the association, having regard to the circumstances of the referral, as an error and omission in respect of an "inconvenient truth". 53 Recalling, at the level of objective possibility, the three elements described by Hayne J in Jia Legeng at 564, what emerges, in my opinion, is the possibility that the Tribunal had a pre-conceived view that the applicant was not a person who feared persecution on the basis of adherence to the practice of Falun Gong, applied that preconception to the question of whether the applicant satisfied the criteria for the grant of a protection visa and did so notwithstanding that there was evidence, at least worthy, prima facie , of credit, that the applicant not only was , not "apparently was", associated with an Australian resident Falun Gong practitioner but had been referred by that person to a solicitor and migration agent whose integrity the Tribunal had no reason to doubt, and who professed to take "Falun Gong" cases only on referral from known Falun Gong practitioners, for the purpose of seeking from Australia the very same refuge from a claimed fear of persecution as the Tribunal itself had regarded as well founded in the case of that referrer. 54 That objective possibility is not removed by regard to the way in which the Tribunal dealt with: (a) the Applicant's knowledge of the Falun Gong movement; (b) the reason advanced by the Applicant for desisting from practising Falun Gong exercises in a park in Australia; (c) the Hospital Document; (d) the Labour Reform Camp Document. 55 The Tribunal was faced with a man of rudimentary education who it found knew the basic tenets of Falun Gong, its founder, its principal text and its five exercises, who claimed benefit from their practice, who claimed to have been prevented by official persecution from readily associating in China with fellow adherents but did so at an asserted price of beating and imprisonment and who it found was unable to engage in a detailed philosophical discussion about the movement.


case_title: Johnson v Johnson (2000) 201 CLR 488

case_text: It has been said that there is no error of law merely in making a wrong finding of fact. Likewise, it may be accepted that an administrative tribunal is not obliged to refer in its reasons to every item of evidentiary material placed before it and that its reasons should not be read narrowly and with an eye for error. In this case, the Applicant did have an association with a particular individual. So much was "apparent" to the Tribunal. Further, the Tribunal knew, because it was expressly told, that this particular individual had been accepted by the Tribunal (differently constituted) as a member of the Falun Gong movement in Australia. It was not correct to find that the Applicant had no association at all with the movement in Australia. The Applicant's assertion of his association with the known practitioner was corroborated by the evidence from his migration agent. The Applicant's evidence was that the nature of the association was not that of social acquaintance but rather that of fellow adherents. His migration agent's evidence also at least raised for consideration an inference that this was indeed the nature of the association. "Objectified" though through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia Legeng at 564; Johnson v Johnson (2000) 201 CLR 488 , 493, it is quite possible to regard this error of fact and the omission to consider the ramifications of the asserted nature and quality of the association, having regard to the circumstances of the referral, as an error and omission in respect of an "inconvenient truth".


case_text: Disquieting though the Tribunal's conception of what is necessary to evidence a religious belief may be, the conclusion which was reached in relation to this applicant's knowledge of Falun Gong may not, viewed in isolation and in the sense described by Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, be so unreasonable that no reasonable tribunal could have so concluded. Viewed against the broader context of the way in which the Tribunal has dealt with other issues, the deference that would ordinarily be conceded on judicial review to such a conclusion is challenged by a distinct, objective possibility of a belief on the part of the Tribunal that someone could not be a Falun Gong practitioner without an ability, irrespective of educational attainment, to engage in philosophical discourse about the movement, that this belief was brought to the determination of the application and that it was applied without giving consideration to the nature of the applicant, the knowledge of the movement and, particularly, an association with an Australian resident Falun Gong practitioner that he in fact had.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165

case_text: Any assessment of the impact, in terms of an apprehended bias challenge, of the Tribunal's treatment of the Hospital Document and the Labour Reform Camp Document must be guided by the cautionary note sounded by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165 at 1174, [49]. "[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant." (Emphasis added) 59 On one view of matters, that is all that the Tribunal has done here. It is possible to discern differences of detail in respect of an event or experience both within the applicant's evidence at the Tribunal hearing and as between that evidence and that given in other material submitted either with the initial protection visa application or later. Such differences certainly could provide a basis for a finding about the applicant's credibility and an affording of no weight to seemingly corroborative documents. In relation to the apprehended bias challenge, the factors are certainly not all one way. 60 Yet the Tribunal's findings concerning the credibility of the applicant's account have themselves been influenced by comparison with inferences that the Tribunal drew from an inspection of the Hospital Document and the Labour Reform Camp Document. This interplay in my opinion distinguishes the present case from the position described by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 in the passage quoted above. 61 The Tribunal rightly acknowledged, explicitly, that the general information that it had from the Australian Embassy concerning document fraud in China did not mean that all documents from that country were fraudulent. Possession of such information reasonably puts any administrator on guard, but nothing more than that, in relation to particular documents. 62 The Tribunal's perception of the genuineness of the applicant's account of his beating at the hands of the police, as well as of the Hospital Document itself, was expressed to be influenced by the fact that this document did not state a cause for the injury. That is true, but the Tribunal had no material before it as to whether it was the usual practice in this or any such Chinese hospital to record a cause, especially when this would record an injury inflicted on a citizen at the hands of State officials.


case_text: This argument has a number of hurdles in the way of raising unlawful detention to a level of being a cause of action with reasonable prospects of success: (1) First, as Gleeson CJ, Gummow, Hayne and Heydon JJ observed in Ruddock v Taylor at [40], a majority of the High Court in Shaw held that Re Patterson is not to be understood as overruling Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178, but even it were to be so understood "... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... Patterson said nothing about the validity of s 189." (2) Second, as noted by the majority in Shaw (at [35]), in Re Minister for Immigration & Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 four members of the High Court agreed that there was no single strain of reasoning in the majority judgments in Re Patterson which contains a binding statement of constitutional principle and that there were differing views in the majority as to what were the facts material to the decision. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. A little later (at [39]) the majority said: "That case [Re Patterson] henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister." See too the respondents' submissions at [8(8)] [8(10)] above. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. As Sackville J, with whom Foster and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581, observed at 594G: "In the absence of a doctrine of prospective overruling, changes in the law offered by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law. Doubtless from a historical perspective, this owes a good deal to the declaratory theory of law ..."


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162


case_title: Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45 ; (1988) 165 CLR 178