case_outcome: approved

case_text: The MRT noted that the provisions of Div 1 had been extensively considered by the Federal Court, and that the Division had been described variously as "a deeming mechanism": Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 ; (2002) 117 FCR 251 (" Meroka ") at [5]; a "triumph of form over substance": Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 (" Ibrahim ") at [40]; and as a "mechanical mode of proof": Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503 at [40] . 76 Ms Riley very properly drew attention to the observations of Ryan J in Meroka , where his Honour said at [33] and [34]: "That is not to say that the Minister (or the Tribunal) can substitute for that of the "competent person", his or its own opinion of whether domestic violence has been suffered. ... I do not consider that the competent person need state expressly that in his or her opinion relevant domestic violence has been suffered. The requisite statement of opinion may be conveyed by implication having regard to the way in which the standard form directs the attention of the competent person to the definition of "domestic violence" in reg 1.23(2)(b)." 77 However, she noted that in Alin , Sundberg J had distinguished Meroka on the basis that the standard form, which had been used in Meroka , had not been used in Alin . Where the standard form was not used, it was necessary, in Sundberg J's view, for the requisite opinion to be expressly stated. Ms Riley noted that the standard form had not been used in the present case. 100 The appellant's submissions regarding the statutory declarations obviously face significant hurdles. Nonetheless, an argument can be put to the effect that the MRT erred in its treatment of this issue. Much will depend upon whether the approach taken by Ryan J in Meroka , which recognises the possibility that a statutory declaration may state an opinion "implicitly", is good law. 101 In particular, the question may arise as to whether the distinction that Sundberg J drew in Alin between a statutory declaration on a form approved by the Department, which may contain implicit statements of opinions, and a declaration not in that form, which may not, is correct. It is fair to say that Sundberg J referred to the difference between the form used in Meroka , and that used in Alin , as a basis for distinguishing Meroka . However, his Honour did not explain, in any detail, why the difference in the form of the declarations used warranted a different result, at least in terms of whether an opinion could be "implicit". It is arguable that the broader and more flexible approach taken by Ryan J in Meroka was not intended to be so constrained.


case_outcome: distinguished

case_text: Speaking of these passages, Drummond J stated at [18]-[26]: "The respondent submitted that the significance of what the Tribunal said in par [25] was to be found in s 65 of the Act. Before the decision-maker (whether that be the Minister, his delegate or the Tribunal) is entitled to grant a visa of the kind sought by the applicant, the decision-maker must be satisfied, among other things, that the other criteria (ie, other than the health criteria) for the visa in question that are prescribed by this Act or the Regulations have been satisfied: see s 65(1)(a)(ii). It was then submitted that all the Tribunal did by making the comments in par [25] was acknowledge that the task for it in determining whether to grant the applicant her student visa in accordance with s 65(1)(a)(ii) was to determine whether, at the end of the day, it was satisfied that criterion 560.213 was complied with, which required it to be satisfied that condition 8202 was substantially complied with. It was said that par [25] should not be read as a statement by the Tribunal that it approached the case on the basis that the applicant must fail unless she discharged the persuasive burden of proving to the civil standard of proof the facts necessary to show that this particular criterion and this condition had been complied with, ie, the facts necessary to show that she was entitled to the visa she sought. Respondent's counsel, correctly in my opinion, accepted that common law concepts of onus of proof have no role in proceedings in the Migration Review Tribunal. See McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356 - 357, 366 and 369; Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 and cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 282 - 283. (To say that notions of onus of proof are irrelevant is not, however, to say that it is not in some circumstances appropriate for the Tribunal to have regard to common law standards of proof, as opposed to the incidence of the burden of proof, and to reach conclusions of fact on some matters only if satisfied as to the existence of those facts "on the balance of probabilities arising from the available information before the decision-maker". See Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1999) 84 FCR 411 at 417 - 420.) These competing submissions necessarily invite the Court to determine just how the Tribunal reasoned its way to dismissing the applicant's application on this ground. I was reminded that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon judicial review by over-zealously seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Wu Shan Liang at 272. This principle of judicial restraint applies to all reviewable administrative decisions including those of the Tribunal. But it does not, I think, apply in the same way to all such decisions. The rigour with which it constrains a court in examining a decision-maker's reasons will reflect the nature and role of the particular decision-maker. Members of the Migration Review Tribunal perform a significantly different function from public servants in the mainstream of federal executive activity who, from time to time, are called upon to make administrative decisions as part of a range of duties conferred on them. The Tribunal is a specialist decision-maker charged with reviewing lower-level administrative decisions. The obligation imposed by s 368 of the Migration Act 1958 (Cth) to provide in written form both reasons and findings, in the context of its decisions being subject to judicial review, shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against an applicant. The principle of restraint is one that cautions against too zealous a search for error. It is not a principle that immunises the Tribunal's reasoning from that critical examination which is part and parcel of the function of a court charged with review of the Tribunal's decision to see if it is flawed with reviewable error of the kinds listed in s 476 of the Act. In Re Ferreras [1991] IRTA 299 (2 September 1991), the Immigration Review Tribunal reviewed the refusal to grant the applicant a visitor visa. It set out in par [7] of its reasons the criteria prescribed for the grant of such a visa and, in pars [11] to [13], turned to two of those criteria, saying: "Criteria J and K comprise what is now commonly classified as the 'bona fides' requirement. They effectively prescribe that the Tribunal must be satisfied on the balance of probabilities that the principal's proposed visit to Australia is 'genuine' and not intended to enable her to become a permanent resident of Australia" The Tribunal then went on to consider various decisions in the Administrative Appeals Tribunal and a decision of Fox J in this Court. It concluded that the effect of these decisions was summed up in a dictum in the Tribunal to the following effect: "... 'as a matter of common sense', to use His Honour's words, he who asserts, or seeks a result, must prove. Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim." This dictum deals with both the incidence of the persuasive burden of proof and the standard to which proofs must rise to justify a finding of fact. The Tribunal noted the decision of the Full Court in McDonald and said, erroneously, that: "The result flowing from the Court's dicta however do not appear to be much different from that raised by the decisions referred to above.". The Tribunal concluded: "... When the whole of the evidence has been considered against the statutory requirements and a Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. In the context of the instant case if having carefully considered the whole of the evidence, the picture is still unclear as to whether there exists an intention to make a 'genuine' visit such that the Tribunal on the balance of probabilities is not able to make a finding in this regard then the criterion has not been satisfied and the application for the visa must fail." However, the tenor of the decision in Re Ferreras is that, though it may be inappropriate to speak of a party bearing a persuasive burden of proof as does a party to litigation in the courts, the practicalities are that in proceedings in the Tribunal the visa claimant has the onus of proving, on the balance of probabilities, the facts fundamental to satisfying the statutory criteria for the visa and will fail if that is not done. For the reasons given, such an approach is wrong. It is difficult to know from the reasons given by the Tribunal just how it reasoned its way to its ultimate conclusion against the applicant. But having referred to Re Ferreras , it may well be that it followed the erroneous approach suggested in that case and regarded the applicant as bearing the persuasive burden of proof to the civil standard of all facts necessary to enable the Tribunal to determine whether it was satisfied that the applicant was entitled to the student visa in question." 68 In that regard, Ms Riley sought comfort in the well-known passage from the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. 69 Ms Riley noted that, at [37] of its reasons, the MRT had correctly acknowledged that an administrative tribunal should not seek to determine matters by the application of the rules related to burden of proof. She submitted, however, that where an applicant asks the MRT to be satisfied about an aspect of his personal situation, in circumstances where the MRT is under no obligation to seek out material for itself, and there is no opposing party, the only realistic source of material upon which the MRT can achieve the required state of satisfaction is the applicant himself. 88 Ms Riley's submission that Wu Shan Liang should be invoked to salvage the MRT's decision, despite its "unfortunate" use of language, has a powerful resonance. There are many cases, where decisions by administrative tribunals have been affirmed, despite lapses in the language used when addressing matters of "proof". However, a great deal must depend upon the particular circumstances of any given case. Some cases will cross the line, and irredeemably reveal jurisdictional error. 89 In my view, the observations of Drummond J at [20] in Huang regarding Wu Shan Liang apply with equal force to the present case. The MRT was plainly confused about the distinction between the onus of proof in curial proceedings, and how a decision maker determines facts in administrative review. That confusion was most clearly manifested by its discussion at [40] of its reasons for decision. The reference to "common sense" (which is in fact a term used to explain the axiom that "he who asserts must prove", in a curial context), was invoked by the MRT, mistakenly, to explain, and justify, a finding made in an entirely different, and purely administrative context. 93 It follows that I disagree, with respect, with the learned Federal Magistrate who concluded that the MRT's decision, though somewhat confused, could nonetheless be saved by application of the principles set out in Wu Shan Liang . His Honour did not have the benefit, as I did, of being referred to the judgment of Drummond J in Huang . Had that case been drawn to his attention, he may well have come to a different conclusion. I would therefore uphold the various grounds of appeal that raise the MRT's treatment of the burden of proof as the basis for challenge.


case_outcome: referred to

case_text: In developing that submission, Mr Horan argued that the concept of onus of proof has no place in administrative proceedings, such as those conducted by the MRT. He referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 (" McDonald ") at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 ; (1999) 86 FCR 567 at [35] per Merkel J, with whom Carr J agreed; and Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 424-5 per Brennan J. He submitted that such proceedings are not adversarial in nature. The MRT is an inquisitorial body which has powers to make inquiries and to obtain additional information. It is not a curial body that decides cases in accordance with principles of evidence, or by determining the incidence of the burden of proof.


case_title: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

case_text: Ms Riley accepted that the notion of proof, as understood in a curial sense, has no role to play in an administrative decision in which the decision maker is asked to be satisfied of a certain matter. However, she submitted that it was also true, as a matter of practical reality, that the decision maker would not be able to be satisfied of a particular matter if there was no evidence, or other material, regarding an important issue, before the decision maker. She referred, in that regard, to Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (" VSAF "), a case in which the applicant had not attended before the Refugee Review Tribunal. In that case, the Full Court saw no error in the Tribunal having proceeded to make its decision without taking any further steps to enable him to attend. The absence of any evidence in support of the applicant's claim enabled the Tribunal to find that it was unable to be satisfied that he had a genuine fear of persecution, or that he had experienced any particular mistreatment or harm. 67 Ms Riley submitted that, in the present case, the MRT's reference to the "common sense" burden, in [40] of its reasons for decision, meant no more than that it could not be satisfied, in the absence of sufficient evidence, that the appellant and the nominator were in a genuine and continuing spousal relationship. It did not mean that the MRT had decided the case on the basis of some failure to discharge a curial onus of proof. 70 Ms Riley next referred to the following passage in VSAF , at [17]: "We are unable to agree with his Honour's statement that "in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction": see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant's claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal's approach was upheld by a Full Court at [15]: "It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied." See also NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 473." 71 Ms Riley submitted that if the appellant did not put before the MRT material sufficient to enable it to be satisfied of a requisite matter, his visa application had to be rejected. She submitted that in the present case, the MRT, though satisfied that the appellant and nominator had "some form of relationship", expressly stated that it was not satisfied that they had been in a genuine and continuing relationship at the time of the application. She submitted that there was nothing in the MRT's reasoning on this issue that suggested it had misunderstood its statutory task. On the material, it was open to the MRT to arrive at the conclusion that it did. 72 Ms Riley recognised that she might be in some difficulty with regard to the burden of proof issue. She frankly acknowledged that the MRT's language had been unfortunate, and that it had been unwise to speak of the appellant having not discharged the "common sense burden" of establishing the facts necessary to enable it to reach a finding on the critical issue. However, she submitted that when the MRT used this terminology, it had merely expressed itself infelicitously, and had done no more than what VSAF expressly contemplated and approved. 86 Ms Riley then submitted that there was an inconsistency between Huang and VSAF . If that were so, I would plainly be bound by VSAF , that being a decision of the Full Court. However, in my view, there is no such inconsistency. In the present case, the MRT analysed the evidence before it through the prism of the burden of proof. In VSAF , there simply was no evidence upon which the MRT could be satisfied of the requisite matters. 91 Subject to what VSAF had to say regarding the meaning of the term "satisfy" (in the context of a proceeding in which the applicant did not attend the hearing that had been arranged so that he could present his case, and therefore put no material to the relevant tribunal in support of that case), it is plainly wrong for a decision maker to approach an application for merits review by considering whether a persuasive burden of proof has been discharged. 92 I should add that I do not understand the MRT, in the paragraphs that are impugned, to have been endeavouring, in an incomplete way, to distinguish between a legal and evidential burden of proof. Nor do I understand it to have embarked upon an analysis grounded in the mysteries of presumptions of law and fact, and any differences that arise between them. Its error was more fundamental than that, and simply reflected confusion on its part as to how the process of administrative review was to be conducted.


case_text: The MRT stated, as its reason for refusing the appellant's application: "36. Other than the evidence of the Applicant, there is no independent reliable evidence attesting to the state of the relationship from family or friends. Whilst the Tribunal is satisfied that the Applicant and Ms Khan may have shared some form of a relationship after the Applicant's move to Perth in or around September 1998 and when the marriage broke up at the end of June 1999 the Tribunal finds that the relationship falls short of a genuine and continuing married relationship as required by law. It would be fair to described [sic] as lacking the evidence relating to indices of such a relationship as set out regulation 1.15A of the Regulations . 37. When considering the question of burden of proof in administrative review, the Tribunal is guided by various Administrative Appeals Tribunal ('AAT') [sic] and the Federal Court on the subject. Whilst acknowledging that an administrative tribunal should not 'seek to determine matters ... by strict application of the rules related to onus of proof', Senior Member Ballard in Re Caruana and Australian Telecommunications Commission (1982) 5ALN N30 nevertheless said that 'regard must be had to the application of those rules ... in determining which party has the responsibility of satisfying the Tribunal as to any given fact '. (See also Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196). His Honour Fox J in Ladic v Capital Territory Health Commission (1982) 5 ALN N60 said (at N61) that, 'the term 'onus of proof' (or 'burden of proof') ... was a legal burden, or requirement and could, as a matter of common sense, be said to have rested with the party seeking the result' 38. This view was endorsed by Deputy President Todd in an AAT decision Re Holbrook and Australian Postal Commission (1983) 5 ALN N146 when he said that, 'as a matter of common sense', to use His Honour's words, he who asserts, or he seeks a result, must prove . Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim.' (emphasis added) 39. In McDonald v Director-General of Social Security (1984) 6 ALD 6, the Federal Court was again anxious to avoid the onus terminology. The result flowing from the Court's dicta however does not appear to be much different from that raised by the decisions referred to above. When the whole of the evidence has been considered against the statutory requirements and the Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. 40. The Tribunal finds that the Applicant has not discharged the 'common sense' burden of establishing the facts necessary to enable the Tribunal to reach a finding on the critical issue. The Tribunal is unable to reach a finding that the Applicant was the spouse of Ms Khan at the time of lodgement of the primary application ." (emphasis added) 30 Mr Horan recognised that the MRT had expressly acknowledged at [37] of its reasons for decision that it should not "seek to determine matters ... by strict application of the rules related to onus of proof", and had cited authority for that proposition. He noted, however, that that statement, which was itself unexceptionable, was immediately followed by the various references to onus of proof, or burden of proof, set out at [37] and [38] of the reasons for decision. He submitted that the MRT's belief that the Full Court's admonition in McDonald to avoid such terminology could be reconciled with the very different approach taken in Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196 and Ladic v Capital Territory Health Commission (1982) 5 ALN N60, the cases to which the MRT referred, indicated that it had not understood the full significance of what the Full Court had said upon this subject.


case_outcome: applied

case_text: In accordance with the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the MRT has been joined as a respondent to this proceeding. I certify that the preceding one-hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 4 April 2006 Counsel for the Appellant: Mr C Horan Solicitor for the Appellant: Goz Chambers Lawyers Counsel for the Respondent: Ms Riley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 March 2006 Date of Judgment: 4 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/328.html


case_outcome: cited

case_text: purpose of a provision such as s 420(2) was explained by Gummow and Heydon JJ, with whose reasons Gleeson CJ agreed, in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [56] ('Applicant S154/2002 ') as follows: '[56] ... The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.' The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which, relevantly, for present purposes, provides as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse ... of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.' The Refugees Convention means the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, and the Refugees Protocol means the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as 'the Convention.'


case_title: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

case_text: satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 ; (1999) 93 FCR 220 ('Rajalingam') refer to the 'civil standard of proof' being not irrelevant to the process of fact-finding by the Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212 ('Kalala') refer to the Tribunal being obliged to consider matters on 'a standard less than the balance of probabilities' (see at [25]). I doubt the utility of addressing matters on which the Tribunal has to be 'satisfied' by a standard which is related to the standard of proof required in adversarial civil litigation.


case_title: Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

case_text: has been said many times, proceedings in the Tribunal are not adversarial, but, rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 at [40] ). The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal, and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Applicant S154/2002 at [57] [58]).


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

case_text: fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [48] ).


case_title: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 222 CLR 161

case_text: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 6 ; (2005) 222 CLR 161 ('NAGV'), the High Court considered s 36(2) of the Act in the form in which it existed prior to the passage of the Border Protection Legislation Amendment Act 1999 (Cth). Relevantly, for present purposes, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ said at [31]-[33]: '31 ... a perusal of the Convention shows that, Art 33 apart, there is a range of requirements imposed upon Contracting States with respect to refugees some of which can fairly be characterised as "protection obligations". Free access to courts of law (Art 16(1)), temporary admission to refugee seamen (Art 11), and the measure of religious freedom provided by Art 4 are examples. 32 ... Section 36(2) does not use the term "refugee". But the "protection obligations under [the Convention]" of which it does speak are best understood as a general expression of the precept to which the Convention gives effect. The Convention provides for Contracting States to offer "surrogate protection" in the place of that of the country of nationality of which, in terms of Art 1A(2), the applicant is unwilling to avail himself. That directs attention to Art 1 and to the definition of the term "refugee". 33 Such a construction of s 36(2) is consistent with the legislative history of the Act. This indicates that the terms in which s 36 is expressed were adopted to do no more than present a criterion that the applicant for the protection visa had the status of a refugee because that person answered the definition of "refugee" spelled out in Art 1 of the Convention.' (Footnotes omitted) Article 33(1) of the Convention, to which reference was made in NAGV , provides: '1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.' The question of who answers the description of a 'refugee' is relevantly determined by Art 1 of the Convention, which relevantly provides: 'A. For the purposes of the present Convention, the term "refugee" shall apply to any person who: ... (2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable or, owing to such fear, is unwilling to return to it.' The Convention does not apply in relation to persecution for one or more of the reasons mentioned unless, by virtue of s 91R of the Act: '(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct.'


case_title: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1

case_text: requirements of s 91R(1) of the Act provide a manifestation of a statutory intent to define persecution, and therefore serious harm, in strict and perhaps narrower terms than an unqualified reading of any unadapted Art 1A(2) of the Convention might otherwise require. The section is not concerned exclusively with or applicable to events in the past, rather than current or future circumstances. The Convention is framed to ensure that persons will not be exposed to persecution, as defined by Australian law, if they were to return to the country which they have left. If any threat or relevant risk is not current or prospective, then there can be no well-founded fear of persecution (per Callinan and Heydon JJ in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 233 CLR 1 ('VBAO') at [49]-[50]). The word 'threat' as used in s 91R(2)(a) of the Act connotes 'risk' in the sense of danger or hazard (per Gummow J in VBAO at [18]). It is indicative of a likelihood of harm (per Gleeson CJ and Kirby J in VBAO at [1] and [3]).


case_title: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1

case_text: definition of 'refugee' in the Convention is couched in the present tense, and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example, by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; [2007] 233 CLR 18 ('SZATV') at [16]). The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]).


case_title: SZATV v Minister for Immigration and Citizenship [2007] 233 CLR 18

case_text: definition of 'refugee' in the Convention is couched in the present tense, and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example, by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; [2007] 233 CLR 18 ('SZATV') at [16]). The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-572 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572). The so-called 'relocation principle' was considered by Gummow, Hayne and Crennan JJ in SZATV at [9] - [22]. At [11] their Honours observed that any notion of 'relocation' and of the 'reasonableness' thereof is to be derived, if at all, as a matter of inference from the more generally stated provisions of the definition of 'refugee' contained in the Convention. At [24], their Honours said: '24 ... What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.' In SZATV the Tribunal had considered that the appellant could reasonably have relocated within Ukraine. The effect of the Tribunal's stance was that the appellant in that case was expected to move elsewhere in Ukraine and live 'discreetly' so as not to attract the adverse interest of the authorities in his new location lest he be further persecuted by reason of his political opinion. The High Court ordered that the decision of the Tribunal be quashed and that the appeal from the decision of the Federal Court on an appeal from the Federal Magistrates Court of Australia be allowed. Application of relevant principles to the present case The first applicant is a non-citizen in Australia who is a citizen of India. The second appellant is a non-citizen in Australia who is the spouse of the first appellant. She does not contend that she is a person to whom Australia has protection obligations under the Convention. The appellants arrived in Australia on 4 March 2008 having left India on the previous day. They each travelled on passports issued by the Indian government and entered Australia relying upon three month visitor visas. On 17 April 2008 the appellants applied for Protection (Class XA) visas. On 3 July 2008 a delegate of the Minister decided that the application of the appellants for protection visas should be refused as their claims did not meet the requisite criterion for a protection visa set out in s 36(2) of the Act.


case_title: Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

case_text: definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-572 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).


case_title: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

case_text: definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]; see also Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]).


case_title: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1


case_text: is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-572 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).


case_title: Jess v Scott & Ors (1986) 12 FCR 187

case_text: Jess v Scott & Ors (1986) 12 FCR 187 at page 195, the Full Court said: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though failed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Mr Nicholls' only reason why he did not file the notice of appeal within the time prescribed by O 52 r 15(1), is that he was preoccupied with an appeal which he was then conducting in the Court. He does not suggest in his affidavit that he did not know that he had to file the notice of appeal within the time prescribed by O 52 r 15(1). He chose not to file it because he chose, as he was entitled, to use that time in preparation for his appeal. He says he was occupied on that appeal to 13 August 2009, but that cannot be right because as I pointed out to him during his argument, the appeal to which he refers was in fact dismissed on 11 August 2009.


case_text: first question to be determined is whether the reason Mr Nicholls has given is a special reason to take the matter out of the ordinary. For the reasons which follow, I do not think, in the context of this proceeding and having regard to the history of this proceeding, it is a special reason. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 and 348 to 349, the Court identified the principles for consideration of an application of this kind: (a) Applications for an extension of time are not to be granted unless it is proper to do so. Prescribed legislative entitlements are not to be ignored. (b) There must be some acceptable explanation for the delay. (c) Any prejudice to the respondent in defending the proceedings caused by the delay is a material factor militating against the grant of extension. (d) The mere absence of prejudice to the respondent is not enough to justify the grant for an extension. (e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. The explanation for the delay is hardly satisfactory. Mr Nicholls was aware that the notice of appeal needed to be lodged by 13 August 2009. Although he may have had obligations in respect to the appeal pending before the Full Court, that did not relieve him of his obligation to comply with the rules. The Deputy Commissioner of Taxation has not contended, in relation to the application for an extension of time, that the Deputy Commissioner would be prejudiced by the granting of an extension of time, which was sought some eight days after the time for filing the notice of appeal had passed. However the absence of prejudice is not a ground for granting an indulgence to the party seeking the indulgence; it merely means that it is not a reason not to grant the indulgence: Hunter Valley Developments v Cohen . It is clear on the authorities, the merits of the appeal must be addressed. The draft notice of appeal identifies 76 grounds of appeal, but when the draft notice of appeal is understood, it could be seen that most of those grounds are no more than what might amount to Mr Nicholls' argument on appeal. The draft notice fails to identify with any particularity the true grounds of the appeal from his Honour's orders. The notice of appeal seems to address three matters of general complaint. The first is in relation to the non-provision by the Deputy Commissioner of an email server to Mr Nicholls during the trial. I am not satisfied that that was ever an issue at the trial or that the non-provision of that email server could have been relevant to the matter with which his Honour was concerned. The second complaint is the failure by the primary judge to grant Mr Nicholls an adjournment. The primary judge dealt with the question of an adjournment at some length in his reasons. There is nothing in the draft notice of appeal which would suggest that his Honour in any way erred in the exercise of his discretion in relation to his refusal to grant Mr Nicholls an adjournment. I shall refer to some of the reasons a little later. The third complaint relates apparently to the cross-examination of Mr Nicholls during the application for the adjournment. There can be no suggestion, in my opinion, that his Honour was wrong to allow the Deputy Commissioner's counsel to cross-examine Mr Nicholls in relation to matters which Mr Nicholls said were relevant to the application for adjournment. Indeed, in my respectful opinion, his Honour would have been wrong to refuse to allow cross-examination on that issue. They appear to be the three main issues which arise out of the notice of appeal. The notice of appeal, however, makes a number of complaints in relation to specific aspects of his Honour's reasons. The form adopted in the notice of appeal is to outline the reasons and then to follow in the next paragraph with the complaint. Regrettably, the complaints do not usually bear upon the findings of which the complaint is made. During this application I pointed out to Mr Nicholls on a number of occasions (by way of example) that the draft notice of appeal identified a particular statement made by his Honour in his reasons and then went on to, apparently, complain about that finding or that statement. However, invariably within the notice of appeal, the complaint which follows the reference to his Honour's reasons does not bear out any error in the reasons themselves. After I had pointed that out to Mr Nicholls during the hearing of this application and, after addressing a number of those issues, Mr Nicholls sought an adjournment of this application in order for him to obtain legal advice so that a more appropriate document could be proffered. The application was opposed by Ms Chapman, counsel for the Deputy Commissioner of Taxation. Mr Nicholls made a number of statements from the bar table in relation to solicitors' involvement in the matter, and the documents that the solicitors had and when he would be able to proffer a further document. Accepting those statements for the purpose of the argument, his ground for the adjournment was that he had provided the reasons for judgment to solicitors who had considered the reasons. He had not provided them with the evidence which was adduced at trial. He would, he thought, be able to provide a notice of appeal which particularised the grounds within a week. Ms Chapman opposed the application on the ground that this was a further instance of delay by Mr Nicholls in this proceeding and other proceedings in this Court, in relation to the issue of the search warrant of 5 May 2008 and the execution of that warrant on 6 May 2008. I refused the application for the adjournment because I was satisfied, on the history given by his Honour in the reasons which are impugned by Mr Nicholls, that Mr Nicholls has failed on a number of occasions to prosecute or defend proceedings in this Court in a timely fashion. I will refer to some of his Honour's comments in relation to that in these reasons. The issue which was before the primary judge arose out of Mr Nicholls making a blanket claim for legal professional privilege on 8 May 2008, over the whole of the material which had been seized during the execution of the search warrant on 6 May 2008. His Honour's reasons demonstrate that the Court has had considerable difficulty in having Mr Nicholls identify the documents over which, in fact, he claimed privilege. The learned judge refers in his reasons to processes which were put in place by the Court, which he said were prolonged and not even completed at the time of hearing. His Honour noted that, during the continuation of this proceeding, the Deputy Commissioner of Taxation had lost patience and had brought this application seeking an order that he be entitled to inspect the seized material. In his reasons, the learned judge has described in detail the attempts which had been made by both the Deputy Commissioner of Taxation and by the Court, to have Mr Nicholls identify precisely the documents over which Mr Nicholls claims legal professional privilege. It would appear, from his Honour's reasons, that Mr Nicholls has not cooperated in any way in attempting to identify those documents. Indeed, as I have already noted, at trial Mr Nicholls sought an adjournment of the application, which it may be inferred his Honour thought was a further delay on Mr Nicholls' part. His Honour's reasons disclose a history of non-cooperation and delay by Mr Nicholls in the process, which the Deputy Commissioner of Taxation and the Court instigated in an attempt to identify precisely the documents over which the claim for legal professional privilege was made. In the end result at trial, Mr Nicholls continued to claim privilege over every document which had been the subject of seizure under the search warrant. His Honour said, in paragraph 115 of his reasons: I find that at all times from about 7 November 2008, other than for a short time prior to 9 February 2004 [sic] and for a week or so after 14 April 2009, Mr Nicholls has had access to a copy of the electronically stored seized material. There is no satisfactory evidence why he could not, within the time allowed as extended up to 7 May 2009, have completed his inspection of that material so as to list the documents in it over which legal professional privilege is claimed, and to provide evidence in support of those claims where they have been disputed. He has simply not done so, over a period of nearly six months. In fact, in my view, he has deliberately prolonged the process to frustrate the resolution of that issue. Having regard to the procedural history before his Honour and to the delays which his Honour has addressed at some length in his reasons, in my opinion the special reason which is identified by Mr Nicholls, being the need to prepare for his appeal in the court, is not a special reason. The applicant's draft notice of appeal, and indeed the applicant, during argument, continues to make the claim that he is entitled to claim legal professional privilege in respect of all of the documents seized under the search warrant. He has continued therefore, notwithstanding the criticism by the primary judge over his inability to particularise the documents which he said are the subject of legal professional privilege, to claim that every document which is presently in the custody of the Court is subject to that privilege. The draft notice of appeal, in my opinion adopts if I might say, the same approach which was apparently adopted before his Honour, which is to refuse to descend into any particularity about the complaints. The draft notice of appeal does not identify any real ground of appeal, but is merely a statement of complaint of his Honour's reasons generally. In the hearing before his Honour, Mr Nicholls' claim for legal professional privilege failed because he adduced no evidence in support of the claim that any of the documents were communications which were protected by legal professional privilege. Insofar as some of his evidence, and in particular his evidence about his inability to open some of the electronic documents, not only was that evidence rejected but his Honour found that the evidence was untruthful. There is, in my opinion, nothing in the draft notice of appeal which would indicate that the applicant has any real prospects of success in relation to an appeal from his Honour's orders. The draft notice is, as I have said, merely an argument which takes issue with the whole of his Honour's reasons. For those reasons I am not satisfied that there are any real prospects of success. In the circumstances where no special reason has been advanced and where there are little or no prospects of success on appeal, it would be inappropriate to grant the order sought. I therefore refuse the application for an extension of time within which to appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 4 September 2009 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Ms L Chapman Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 25 August 2009 Date of Judgment: 25 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1003.html


case_title: Deputy Commissioner of Taxation v Nicholls (No 3) [2009] FCA 785


case_title: Cilli v Abbott (1981) 53 FLR 108

case_text: As a general rule, costs of an application follow the event. A key reason for this is because, as pointed out by the Full Court in Cilli v Abbott (1981) 53 FLR 108 at 111, 'the object of costs is not to penalise; it is to indemnify the successful party in relation to expense to which he has been put by reason of legal proceedings'. This principle was adopted in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 per Mason CJ at 543, Toohey J at 563 and McHugh J at 567 in the context of both civil and criminal proceedings.


case_title: Gauci v Kennedy [2006] FCA 869

case_text: In my view, a decision of a Federal Magistrate dismissing an application pursuant to r 13.10 Federal Magistrates Court Rules 2001 is an interlocutory decision, requiring leave of the Federal Court to appeal: Rana v University of South Australia [2004] FCA 559 ; Gauci v Kennedy [2006] FCA 869. No leave to appeal has been sought. However this point in my view is moot because, as I indicated earlier in this judgment, both parties were of the view that the appeal be dismissed. The real issue before me is in relation to costs.


case_text: Subsequently, on 14 June 2006 the appellant filed an application seeking an order that the orders of Jarrett FM be set aside. On 28 August 2006, Jarrett FM made orders setting aside his orders of 6 February 2006, that the applicant pay the respondent's costs of and incidental to its application filed 14 June 2006, and that the Migration Review Tribunal be joined as a second respondent to those proceedings. His Honour also made directions including that the appellant's further application be listed for hearing on 23 October 2006 ( Han v Minister for Immigration (No 2) [2006] FMCA 1251). 4 I understand that the further application was heard by Jarrett FM on 23 October 2006, and his Honour has reserved judgment. 5 As a result of this sequence of events, it follows that there is no reason for the appellant to maintain its appeal from the judgment of Jarrett FM of 6 February 2006. Indeed, the appellant before me this morning submitted draft orders including that the appeal be dismissed. 6 The issue upon which the parties do not agree however is the issue of costs in this appeal. 7 In summary, the appellant has sought orders that: 1. The appeal be dismissed. 2. Costs of and incidental to the appeal follow the decision of Jarrett FM currently reserved (Federal Magistrates Court proceedings File No BRG772/2005), with the result that if the appellant is successful before Jarrett FM, the respondent should pay the costs of the appeal, and vice versa if the respondents are successful before Jarrett FM.


case_title: MLGXAL v MIMIA [2006] FCA 966

case_text: In summary, the respondent has submitted: • Where an appeal arises from a decision which has now been set aside, the appeal should be dismissed and the appellant ordered to pay the respondent's costs of and incidental to the appeal. • The appropriate way to proceed in relation to decisions in the Federal Magistrates Court under r 13.10 is to make an application to set aside the decision under r 16.05. The appellant eventually did this and was successful in having the decision set aside. This approach has been endorsed in a number of cases including MZWXC v MIMIA [2006] FCA 172 and MLGXAL v MIMIA [2006] FCA 966. • The appeal in this matter was always misconceived as to the proper course to proceed, and incompetent as no application for leave to appeal was filed. • The decision of Jarrett FM on the substantive hearing has no relevance to this appeal. Further, Ms Wheatley for the respondent submitted in Court this morning that costs in this appeal bear no relevance to the new matter before Jarrett FM. 13 It is strongly argued by the respondent, on the basis of such authorities as MZWXC and MLGXAL that the appropriate course for the appellant to have adopted in the first place would have been to apply to have the decision of Jarrett FM set aside. I note from the notice of appeal that the appellant was unrepresented, or at least appeared unrepresented, at the time of filing, and he may not have understood that an application to set aside the judgment of 6 February 2006 was the proper course in the circumstances. Irrespective of this, the respondent has been put to expense by legal proceedings in the form of this appeal, and this appeal has now been rendered nugatory by the appellant successfully applying to have the original judgment set aside and a fresh application determined by the Federal Magistrates Court. 14 Before me this morning Mr Boccabella pressed that the appellant's case has merit, and that this should influence my approach to making a costs order in this matter. Counsel distinguished MZWXC and MLGXAL on this basis namely that the applications in those cases appeared to lack merit. In my view it is unnecessary to examine this issue in detail, other than to observe that it is clear that there is sufficient merit in the appellant's case to justify orders setting aside the decision of Jarrett FM of 6 February 2006, but that the merits of the appellant's application before Jarrett FM will be considered by Jarrett FM in his judgment in due course. All parties agree that this appeal should be dismissed because it has been overtaken by events at the appellant's instigation. The merits of the substantive case now before Jarrett FM are of little relevance in the context before me.


case_title: MZWXC v MIMIA [2006] FCA 172


case_title: Rana v University of South Australia [2004] FCA 559


case_outcome: followed

case_title: Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 , 66 ATR 225

case_text: The contention that the Tribunal made a decision in " bad faith " is likewise to be rejected. An allegation of " bad faith " is serious ( SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397) and cases in which " bad faith " will be established " will be rare and extreme and claims of bad faith must be clearly particularised ": Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out " bad faith ": [24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him -- tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. This decision has since been followed by Finn J in SZHAH v Minister for Immigration & Multicultural Affairs [2006] FCA 1012 at [17] . " The presence or absence of honesty will often be critical ": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] , 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. " Bad faith ", Allsop J has further observed, " is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question ": NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] , [2002] FCA 713 ; 195 ALR 207 at 215. His Honour there rejected a submission that " enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker ". Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] , Heerey J observed that " bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved ". See also: SZJVA v Minister for Immigration & Citizenship [2008] FCA 1631 at [47] per McKerracher J.


case_title: NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 , 195 ALR 207


case_title: NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 , 130 FCR 210


case_text: The second basis for concluding that this purported Ground is without substance is that it is no part of the function of the Federal Magistrates Court when reviewing a decision of the Tribunal, or for this Court on appeal, to question the " weight " given by the Tribunal to particular facts or considerations. That is a matter for the Tribunal alone. In an oft-cited passage in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 Mason J observed: ... The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned... It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". ... See also: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281 2. It is also to be recalled that a principal reason provided by the Tribunal in the rejection of the claims being made was its conclusion that the now Appellant was not " credible " and was " not a reliable witness ". Such findings, it has been said, are findings " par excellence " entrusted to the decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407. McHugh J there rejected an argument that a failure to provide reasons for a finding that a claim was " utterly implausible " constituted a breach of s 430 and, in doing so, observed: [67] ... However, this was essentially a finding as to whether the prosecutor should be believed in his claim -- a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged. No greater reasons need have been provided by the Tribunal in the present proceeding for its conclusions; nor need the Tribunal have explained what " weight " it gave to the November 2007 response.


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407


case_text: An instance of a decision of the Tribunal not having been made in good faith is provided by SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547. It was there concluded that the lack of good faith was established because the Tribunal had looked for reasons to reject the claim being advanced. Mansfield J there observed: [36] I am mindful that a finding that a decision of the Tribunal was not made in good faith will be exceptional. However, in this matter I have concluded that the Tribunal's decision was not made in good faith. I have reached that conclusion by inference from my consideration of the Tribunal's reasons as a whole, and not by taking any particular part of its reasons in isolation. I will not repeat the analysis of the Tribunal's reasons discussed above. In my judgment, its reasons go beyond the Tribunal making findings of fact or making observations which involve it making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant's claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant's claims. That conclusion is reached notwithstanding that in its consideration of the definition of "refugee" it has referred to the relevant decisions of the High Court and notwithstanding that, at the commencement of the "findings and reasons" section of its decision the Tribunal quotes the observations of Gummow and Hayne JJ in Abebe [v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510] at 577 578 set out in [29] above. At no point in its reasons thereafter do those considerations appear to attract any attention. Instead, each of the factors upon which the Tribunal relied to reject the applicant's claim as to his nationality demonstrates upon analysis in the ways I have referred to above a rigid and at times inexplicable finding adverse to him. ... Reference may also be made to His Honour's decision in SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591. But such is not the present case.


case_text: The appeal should be dismissed on that basis alone. Such a fundamental deficiency in a notice of appeal is not a mere matter of form; no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263. In Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 , Finn, Marshall and Goldberg JJ likewise emphasised the appellate role of this Court. Their Honours were there addressing an appeal which did at least allege error on the part of the Federal Magistrate, but they did go on to make the following observations as to attempts to review in this Court the reasons of the Tribunal: [10] We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed [to] her Honour's decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant's submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge's reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons.


case_title: SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591


case_title: SBAP v Refugee Review Tribunal [2002] FCA 590


case_title: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749


case_title: SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397


case_title: SZHAH v Minister for Immigration & Multicultural Affairs [2006] FCA 1012


case_text: A differently constituted Tribunal affirmed the delegate's decision on 30 November 2007. The Tribunal " did not find the applicant to be credible on some key aspects of his claims ". Instances were provided " of the inconsistencies, contradictions and implausibility that lead the Tribunal to conclude that the applicant is not a reliable witness in relation to certain aspects of his claims ". On 19 August 2008 the Federal Magistrates Court dismissed an application for review: SZJHE v Minister for Immigration [2008] FMCA 1299. 4 The Appellant now appeals to this Court. He appeared unrepresented during the course of the hearing on 24 November 2008, although he did have the benefit of an interpreter. He had also filed on 19 November 2008 a written Outline of Submissions . 5 The Grounds of Appeal to this Court (without alteration) are expressed as follows: 1. The Refugee Review Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act: Particulars A. The Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act that: i) the authority of India treated the LTTE as a terrorist organization and the members and supporters of this organization are the enemy of the nation. They were in the government's wanted list. 1. The Refugee Review Tribunal made the decision in bad faith: Particulars A. The Tribunal made the decision in bad faith by making the following comment that: i) the Tribunal did not find the applicant to be credible on some key aspects of his claims; and ii) the Tribunal did not accept that the applicant was of adverse interest to the Indian authorities. 2. The decision of the Refugee Review Tribunal did not give any weight to the response that I lodged under s424A of the Migration Act: Particulars A. The Tribunal asked me to provide a response for couples of things and I promptly response of those things that the Tribunal came into my attention. However the Tribunal did not give any weight to those documents and just came into conclusion whatever had to its mind. These Grounds of Appeal are a substantial repetition of the grounds as advanced before the Federal Magistrates Court. The Appellant's written submissions also substantially repeat that which is otherwise set forth in the Grounds of Appeal .


case_title: SZJVA v Minister for Immigration & Citizenship [2008] FCA 1631


case_title: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263


case_text: The question of whether damage and embarrassment and considerations of confidentiality and privacy could found the basis for the making of a suppression order was considered recently by the Full Court in the case of Herald & Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 ('Williams') 20 In that case, Mr Williams, who was a well-known football player, commenced proceedings in the Administrative Appeals Tribunal ('the AAT') challenging an amended assessment of his taxation return. At an interlocutory hearing, the AAT made an order suppressing the publication of Mr Williams' name. Mr Williams appealed to this Court against an interlocutory decision of the AAT in relation to whether the Australian Taxation Office had provided sufficient particulars of its claims in support of the amended assessment. The primary judge made a suppression order suppressing Mr Williams' name in order to give 'practical effect' to the suppression order of the AAT. There was an appeal against that decision and the Full Court allowed the appeal. 21 In the Full Court, Merkel J (with whom Finn and Stone JJ agreed) drew a distinction between the role of the AAT as a 'layer' of administrative decision-making in the Commonwealth and the exercise by the Court of the judicial power of the Commonwealth. At 443, at [31] Merkel J said: '...before exercising the power conferred by s 50 of the FCA Act the primary judge was required to determine whether it appears that the order sought was "necessary in order to prevent prejudice to the administration of justice". Section 50 is concerned with prejudice in respect of the exercise by the court of the judicial power of the Commonwealth, rather than prejudice in respect of the exercise by the AAT of the administrative power of the Commonwealth. Maintaining or, as the primary judge put it, "giving practical effect" to Williams' statutory entitlements to privacy and confidentiality in relation to the application for administrative review in the AAT may, or may not, be necessary in order to prevent prejudice to the exercise by the a AAT of its powers but cannot, standing alone, be necessary in order to prevent prejudice to the exercise by the court of its judicial powers.' 31 Senior counsel for the University submitted that the position in this case was distinguishable from that in Williams in that the privacy and confidentiality regime in Williams was based on statute and the orders of the AAT. However, in this case the information was given by the complainants pursuant to a confidentiality undertaking given by the University, which was of such a nature as would attract the protection of equity. This was, submitted senior counsel, a sufficient basis on which to make a suppression order under s 50 of the Act because the proper administration of justice required the preservation of confidentiality undertakings. Senior counsel also submitted that the case of Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (' Parish' ) was an authority which supported this proposition. 35 In Williams , the Full Court found that the primary judge was in error in making a suppression order under s 50 of the Act on the grounds of seeking to give 'practical effect' to the privacy and confidentiality entitlements that Mr Williams was entitled to in the AAT proceedings, without assessing whether it was necessary to suppress the publication of Mr Williams' name to prevent prejudice to the administration of justice in this Court. 36 I do not accept the submission of senior counsel for the University that the Williams case is distinguishable from this case, in that the respective confidentiality and privacy regimes were founded on different bases. The gravamen of the decision in Williams was not whether the basis of the existing confidentiality regime was to be found in statute or common law or equity, but whether it was necessary to maintain that regime in order to prevent prejudice to the administration of justice in this Court as opposed to the forum which was the source of the existing confidentiality regime. In essence, in seeking to prevent publication of the names of the complainants, the University seeks to perpetuate in this Court the privacy and confidentiality regime which prevails as part of its process for investigating serious misconduct under the processes contemplated by the Sexual Harassment Policy and the certified agreement. This emerges from the evidence of Mr Farrelly who refers to the privacy and confidentiality provisions of the Sexual Harassment Policy and to the potential difficulty in the implementation of that policy if the confidentiality as to the names of complainants generally is not preserved. In my view, the University is asking this Court to give effect to the confidentiality and privacy regime under its Sexual Harassment Policy and the certified agreement, in the same way as Mr Williams asked the primary judge to give effect to his confidentiality and privacy entitlements before the AAT. There is, therefore, in my view, no material distinction between the approach advanced by the University and the approach taken by the primary judge in Williams which was identified by the Full Court as erroneous. I am bound by the decision in Williams . 39 As mentioned, Mr Farrelly has deposed that he is concerned that if the names of complainants under the University's Sexual Harassment Policy are not kept confidential this will have adverse consequences for the enforcement of the University's Sexual Harassment Policy in the workplace. This is a legitimate concern. However, because that concern relates to the conduct of disciplinary proceedings in an institution other than this Court and does not relate to the exercise of judicial power in this Court, it does not fall within the ambit of the factors identified by the Full Court in Williams as being factors to which regard may be legitimately be had in determining whether to make a suppression order under s 50 of the Act. 40 As to the wider argument by senior counsel for the University that the failure to suppress the names of the complainants may lead to persons in general being less likely to report sexual harassment, this is a variant of the argument founded on the potential for embarrassment of a party or a witness by the disclosure of that person's name. As mentioned, the extent to which embarrassment and distress may lead to the making of a suppression order under s 50 of the Act, in any proceeding, must be assessed by reference to the application of the principles in Williams , to that proceeding. In other words, the question of whether to make a suppression order under s 50 of the Act is not to be assessed by reference to broad public policy considerations, but by reference to the extent to which, on the evidence, the administration of justice may be prejudiced in any specific proceeding by not making the order. As stated above, it is established on the authorities that embarrassment, standing alone, is not sufficient for the making of an order under s 50 of the Act. 41 As mentioned, the names of the complainants appeared in the body of the applicant's affidavit and in documents, including a crucial letter of 2 March 2006, which were in evidence, and to which reference was made, at the hearing of the interlocutory injunction. Further, the names of the complainants were mentioned in open court during the hearing. Applying the principles in Williams , there is no evidence before me which permits me to conclude that it is necessary to suppress the publication of the names of the complainants in order to prevent prejudice to the administration of justice within the meaning of s 50 of the Act. I would, therefore, discharge the order which I made on 27 March 2006 suppressing the publication of the names of the two complainants. 42 I turn now to the application by counsel for the newspapers that the newspapers be permitted to inspect the affidavit of the applicant dated 17 March 2006 and all of its exhibits. This application if granted would permit the newspapers to inspect the complainants' affidavits. 43 Counsel for the newspapers argued that the newspapers should be given access to the whole of the affidavit of the applicant of 17 March 2006, including the complainants' affidavits, because this would assist the newspapers in being better able to understand and report upon the proceeding. Counsel also relied upon the public interest in open justice. Senior counsel for the University opposed the application by the newspapers on the grounds that the complainants' affidavits were made in circumstances of confidentiality.


case_text: Senior counsel for the University submitted that the position in this case was distinguishable from that in Williams in that the privacy and confidentiality regime in Williams was based on statute and the orders of the AAT. However, in this case the information was given by the complainants pursuant to a confidentiality undertaking given by the University, which was of such a nature as would attract the protection of equity. This was, submitted senior counsel, a sufficient basis on which to make a suppression order under s 50 of the Act because the proper administration of justice required the preservation of confidentiality undertakings. Senior counsel also submitted that the case of Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (' Parish' ) was an authority which supported this proposition. 37 Further, I do not accept senior counsel's submissions that Parish is an authority for the proposition that the Court will grant suppression orders pursuant to s 50 of the Act to protect confidential undertakings generally because the making of such orders is necessary to prevent prejudice to the administration of justice. I agree with the analysis of Parish by Weinberg J in Johnston at first instance [2002] FCA 948 at [82] that the reason that a suppression order was made in that case was to prevent the proceeding then before the Court from being rendered nugatory. In this case, whilst the disclosure of the names of the applicant and the two complainants would cause embarrassment, it would not render the proceeding nugatory.


case_text: At 444-445, at [36] Merkel J went on to say: 'A different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the court, or "if there was a real risk as opposed to a remote possibility that this would occur": see Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160 at 180. If that situation arises it can be weighed in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice. However, that situation has not arisen in the present matter.' 24 The fact, therefore, that a failure to make a suppression order may cause severe embarrassment to, or damage the reputation of, a party or potential party to litigation may be factors to take into account in balancing the public interest in open justice against the need to prevent prejudice to the administration of justice. However, the weight that will be accorded to these factors will depend very much on the circumstances of each case. There is no evidence in this case that the applicant would, in the absence of a suppression order being made, be prevented or deterred from continuing this proceeding. Nor is there evidence that there is a real risk that this may occur. It follows that embarrassment and potential damage to the reputation of the applicant, standing alone, will not satisfy the requirements of s 50 of the Act to justify the making of a suppression order. These principles apply whether the hearing is final or interlocutory. 25 Further, in this case, by invoking the jurisdiction of this Court, the applicant has obtained the benefit of an interlocutory injunction. The risk that it would become public knowledge that there were embarrassing disciplinary allegations made against him by the University did not deter the applicant from commencing this proceeding and applying for interlocutory injunctive relief. 26 It follows that the order made on 27 March 2006 suppressing the publication of the name of the applicant until further order should be discharged. I also discharge the order of 24 March 2006 substituting the name of the applicant in this proceeding with the letter 'Y'. 27 I deal next with the question of whether the suppression order in relation to the names of the two complainants should be discharged. As mentioned above, the complainants are not deponents in this proceeding. However, the statements which they have made in the form of affidavits are the basis on which disciplinary charges have been brought against the applicant by the University. The names of the complainants also appear in the body of the applicant's affidavit of 17 March 2006 and in several of the letters comprising exhibits to the affidavit, including a crucial letter of 2 March 2006 from the University. This letter was the subject of considerable debate by counsel at the hearing of the application for the interlocutory injunction. Further, as mentioned, the names of the complainants were mentioned by counsel in open court during that hearing. 28 The University submitted that the order suppressing publication of the names of the two complainants should be continued. The University relied on the affidavit of 24 March 2006 of Mr Robert Bruce Farrelly, the Director of Human Resources at the University. Mr Farrrelly deposed that during August 2005 to November 2005, following complaints, which included complaints about sexual harassment, from members of staff in the relevant School, interviews were conducted by Ms Beverley Hill with members of staff from that School, as part of an inquiry by the University. Ms Hill was, at the material time, an employee of the University, with the title of Manager, of Equity and Diversity, reporting to Mr Farrelly. These interviews were conducted on the basis of the assurances by Ms Hill, on behalf of the University, that the names of interviewees would not be disclosed outside of the disciplinary processes of the University which were to be conducted confidentially and in private. It was those interviews which ultimately led to the complainants making the affidavits of 14 December 2005. Ms Hill subsequently prepared a report dated 7 November 2005 which contained her findings. An edited version of that report is also an exhibit to the applicant's affidavit of 17 March 2006. 29 Mr Farrelly also deposed that as Director of Human Resources, he was concerned that unless confidentiality was maintained, members of staff who make complaints of sexual harassment, will be fearful of suffering reprisals, shame and humiliation. He also said that if the University was not able to maintain confidentiality, the University would not be able to address matters that arose from Ms Hill's inquiry or generally take steps to address misconduct in the workplace and ensure a safe working environment. 33 Counsel for the newspapers submitted that the Court was not bound to give effect to private arrangements in relation to confidentiality in determining whether to make a suppression order under s 50 of the Act. Counsel referred to Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160 as an instance where the Court had refused to make a suppression order in respect of information before a union inquiry, notwithstanding that there was evidence that the information was being treated as confidential by union officials investigating allegations of sexual assault against a prominent union official. Relying further on Johnston , counsel also submitted that there was nothing inherently confidential about the names of the complainants nor the descriptions of their dealings with the applicant. 34 Counsel also submitted that whether a suppression order was necessary to prevent prejudice to the due administration of justice should be assessed by reference to whether the exercise of judicial power before this Court would be prejudiced, and not whether proceedings before some other institution may be prejudiced.


case_title: Johnston v Cameron [2002] FCA 948

case_text: Further, I do not accept senior counsel's submissions that Parish is an authority for the proposition that the Court will grant suppression orders pursuant to s 50 of the Act to protect confidential undertakings generally because the making of such orders is necessary to prevent prejudice to the administration of justice. I agree with the analysis of Parish by Weinberg J in Johnston at first instance [2002] FCA 948 at [82] that the reason that a suppression order was made in that case was to prevent the proceeding then before the Court from being rendered nugatory. In this case, whilst the disclosure of the names of the applicant and the two complainants would cause embarrassment, it would not render the proceeding nugatory.


case_text: I agree, however, with respect, with the observations of Sackville J in Seven Network Limited v News Limited (No 9) [2005] FCA 1394 that in exercising the discretion under O 46 r 6(3) of the Rules, considerable weight will be given to the principle of open justice. Further, a court is more likely to grant access to affidavits which have been admitted into evidence at a hearing than to affidavits which have been filed with the court but have not been admitted into evidence (see French J in Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey No 2 [2006] FCA 407 at [17] ). It will only be in exceptional cases that access will not be granted where an affidavit has been admitted into evidence (see Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [20] ). Nevertheless, each case must be considered in the context of its own circumstances.


case_title: Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey No 2 [2006] FCA 407


case_title: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408