case_text: The appellant submitted that the Tribunal made jurisdictional errors of the kind described in Appellant S395/2002 . His counsel submitted that the applicable principles were summarised by the Full Court (Sundberg, Marshall and North JJ) in Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 (' VWBA' ), where Sundberg and North JJ said at [6] that Appellant S395/2002 stands for three propositions (references omitted): '(a) The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal's task is to assess what the applicant will do, not what he or she should do. (b) If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. (c) The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.' 52 The Tribunal accepted that the appellant's activities had brought him to the adverse attention of the authorities in the past. It did not, however, go to the next step of asking whether there was a real chance that such adverse attention would continue in future in ways that amounted to persecution, or whether the appellant would modify his behaviour to avoid persecution. Applying the second limb in VWBA (see par [21] above), the Tribunal, by finding that the appellant 'knows and understands the political situation', failed to properly consider why the appellant will modify his behaviour if he returns to Burma. Nowhere has the Tribunal asked itself why it has reached the conclusion that the appellant will not act in such a way in the future as to bring himself to the adverse attention of the authorities. 53 I have therefore concluded that the Tribunal failed to consider the real question it had to decide. I am also satisfied that Phipps FM erred in law in the findings he reached, and in the conclusion that there was no reviewable error in the Tribunal's decision. 54 Section 474(1) of the Migration Act 1958 (Cth) (' Migration Act ') provides that a 'privative clause decision' is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not subject to prerogative writs in any court on any account. Section 474(2) defines a 'privative clause decision' as a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Migration Act or under a regulation or other instrument made under the Migration Act (whether in the exercise of a discretion or not), and subject to the exclusions in subss (4) and (5). A reference to a 'decision' in s 474 includes the matters listed in s 474(3).


case_outcome: cited

case_text: The appellant also relied on the decision of French J in WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065. His Honour said at [57]-[58]: 'Where a tribunal considers, by reference to the previous activities of a person in the country which they have left, that the person was not a political dissenter at a level likely to attract persecution and that the person is unlikely to become a political dissenter upon return to the home country, it engages in an entirely legitimate exercise. Otherwise every applicant for a protection visa, however bland their history of activity in the country from which they have come, would have to be considered for a protection visa on the hypothesis that upon return such a person could become a political activist of a kind likely to be persecuted by the authorities of the home country. If the Tribunal had simply approached its consideration of the applicant's likely conduct on return by a process of extrapolation based on her pre-departure history in Burma and her subsequent history in Australia, it would not have erred. In this case, however, in the passage to which counsel has drawn attention, it seems to have gone further. The Tribunal accepted that the applicant's brief record of anti-government activity while in Burma was one for which she paid dearly. Its satisfaction that she would not be "motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with Burmese authorities" implied a finding that fear of persecution would prevent her from being involved in such activities. If that is so, then the Tribunal appears to have overlooked a subjectively and objectively based fear of persecution on the part of the applicant for a Convention ground.'


case_text: The Minister contended that the Tribunal is only obliged to consider the evidence that is put to it by the appellant. It is up to the Tribunal, as an inquisitorial body, to deal only with the appellant's material and evidence before it: see Abebe v Minister for Immigration and Multicultural Affairs [1999] HCA 14 ; (1999) 197 CLR 510 (' Abebe '), per Gummow and Hayne JJ at 576 [187]. 24 This contention was pressed at two levels. At the higher level, the Minister contended that as the behaviour modification claim was not raised by the appellant before the Tribunal, there was no error in the way that the Tribunal dealt with the appellant's claim. Phipps FM was correct, so the Minister said, in finding that the Tribunal was not obliged to inquire into the behaviour modification claim because it was not explicitly raised by the appellant at the hearing or in the second statutory declaration. 30 A behaviour modification claim was not explicitly formulated in those terms before the Tribunal. In these circumstances, the respondents rely on the statement by Gummow and Hayne JJ in Abebe at 576 [187], to assert that the Tribunal was not required to consider such a claim: 'Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.' 31 In the course of the hearing, a question arose as to how the Minister's argument, founded on Abebe , can be reconciled with the comments of Merkel J in Paramananthan at 63. His Honour's view, confirmed by the Full Court in VFAY at [97], was that: 'In general, an administrative tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration (see Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put: Noble v Repatriation Commission (unreported, Federal Court, Full Court, No VG 308 of 1997, 3 November 1997) at p 16. However, ultimately the [Tribunal] is under a duty to fulfil its statutory obligation to "review the decision" before it and to do so according to s 420(2), which requires it to act according to the "merits of the case". Unlike an adversarial proceeding, parties do not appear and put a case, as such, to the [Tribunal]. As stated above, the [Tribunal] is required to determine whether it is "satisfied" that the applicant is a person to whom Australia has protection obligations under the Convention. Material and evidence, as well as arguments, may be presented to the [Tribunal] but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the [Tribunal] may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ; and Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 118-119; 151 ALR 505 at 547-548 per Wilcox J. Similarly, the [Tribunal] is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Branson J, No NG 134 of 1998, 26 October 1998) at p 2 and Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49-50. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particular case, but cannot affect the fundamental duty of the [Tribunal], acting inquisitorially, to review the decision before it according to the "merits of the case". In my view the inquisitorial function of the [Tribunal] and the combined effect of the provisions to which I have referred, is such that the [Tribunal] is required to determine the substantive issues raised by the material and evidence before it. That duty... is a fundamental incident of the inquisitorial function of an administrative tribunal such as the [Tribunal].' 34 The analysis of this issue by Gummow and Hayne JJ proceeds on the footing that the Tribunal is not confined by the way in which an applicant formulates his or her claims: the central question whether there is a well-founded fear of persecution must in their view be examined in the light of all the evidence before the Tribunal and the Tribunal's findings of fact. In the case before them, this question had to be addressed in the light of the Tribunal's finding that the appellants were likely to live in a way that would not cause Bangladeshi society to confront their homosexual identity: at 502 [87]. Gummow and Hayne JJ said at 500 [80]: 'If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.' 35 A little later in their reasons for judgment, Gummow and Hayne JJ at 503 [88] identified the error made by the Tribunal: '[The Tribunal] did not ask why the appellants would live "discreetly". It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to "live openly as a homosexual in Bangladesh"; secondly, that "[t]o attempt to [live openly] would mean to face problems"; and, thirdly, that "Bangladeshi men can have homosexual affairs or relationships, provided they are discreet ". Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants' fears well founded. All that was said was that they would live discreetly.'


case_text: In oral submissions, the Minister also put the argument at an alternative and lower level. This argument accepted that the Tribunal may be required in particular circumstances to investigate beyond the limits of the claim expressly made by the appellant, but it maintained that there is nothing in the present case to indicate that it was bound to do so because the behaviour modification claim was not explicitly or implicitly raised by the appellant: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 (' Paramananthan ') per Merkel J at 62-63; Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 (' VFAY'), per French, Sackville and Hely JJ at [97]. 31 In the course of the hearing, a question arose as to how the Minister's argument, founded on Abebe , can be reconciled with the comments of Merkel J in Paramananthan at 63. His Honour's view, confirmed by the Full Court in VFAY at [97], was that: 'In general, an administrative tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration (see Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put: Noble v Repatriation Commission (unreported, Federal Court, Full Court, No VG 308 of 1997, 3 November 1997) at p 16. However, ultimately the [Tribunal] is under a duty to fulfil its statutory obligation to "review the decision" before it and to do so according to s 420(2), which requires it to act according to the "merits of the case". Unlike an adversarial proceeding, parties do not appear and put a case, as such, to the [Tribunal]. As stated above, the [Tribunal] is required to determine whether it is "satisfied" that the applicant is a person to whom Australia has protection obligations under the Convention. Material and evidence, as well as arguments, may be presented to the [Tribunal] but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the [Tribunal] may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ; and Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 118-119; 151 ALR 505 at 547-548 per Wilcox J. Similarly, the [Tribunal] is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Branson J, No NG 134 of 1998, 26 October 1998) at p 2 and Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49-50. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particular case, but cannot affect the fundamental duty of the [Tribunal], acting inquisitorially, to review the decision before it according to the "merits of the case". In my view the inquisitorial function of the [Tribunal] and the combined effect of the provisions to which I have referred, is such that the [Tribunal] is required to determine the substantive issues raised by the material and evidence before it. That duty... is a fundamental incident of the inquisitorial function of an administrative tribunal such as the [Tribunal].'


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191


case_text: The Minister submitted that on a fair reading of the Tribunal's decision in its entirety, the Tribunal based its decision on the appellant's past activities in Burma and also his activities in Australia. According to counsel for the Minister, the activities in which the appellant engaged in Australia were such that the appellant would not have a high profile he was merely a 'noisy face in a crowd'. The Minister submitted that the Tribunal had not erred in the way in which it looked at the appellant's past behaviour and transposed it into the future, citing Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. The Minister also submitted that it can be inferred that as the appellant had the unrestricted right to engage in political activity in Australia, but did not join a political party for two years, he would not engage in activities on return to Burma that would bring him to the adverse attention of the authorities. 27 The Minister contended that the Tribunal's consideration of the behaviour modification claim does not reveal any error, let alone jurisdictional error. In the Minister's submission, it is apparent from the Tribunal's reasons that it looked at the claims presented by the appellant and determined that it was not satisfied that he has a well-founded fear of persecution. In doing so, the Tribunal did not fail to ask the correct question. 28 As Phipps FM identified, the Tribunal did not consider the behaviour modification claim. Accordingly the issues to be determined in this appeal are whether that claim arose from the evidence before the Tribunal and, if so, whether the Tribunal's failure to consider it amounts to jurisdictional error.


case_text: An appeal from a judgment from the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] ( 'Abeyesinghe' ); Low v Commonwealth [2001] FCA 702 at [3] . The right of appeal exists for the correction of error: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203-204 [14] . Thus, this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4]. In my view, a legal error by the Federal Magistrates Court will be demonstrated if a behaviour modification claim did in fact arise on the evidence before the Tribunal, and the Tribunal failed to consider it.


case_title: Low v Commonwealth [2001] FCA 702


case_title: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194


case_text: There are other difficulties with the manner in which the Tribunal approached the appellant's claim. The Tribunal's conclusion that, even if the appellant's activities in Burma and Australia are considered cumulatively it was not satisfied that the appellant would have an adverse profile with Burmese authorities, indicates that the Tribunal approached the issue on the basis of the balance of probabilities, rather than by appropriately assessing the possibilities of future persecution: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, per Merkel J at 248 [15]. The latter approach reflects the requirements of the Refugee Convention. To qualify as a refugee, an applicant must have a well-founded fear of persecution. This will be so if the applicant holds a genuine fear of persecution that is founded on a real chance that he would be persecuted for one of the reasons stipulated in the Convention if he returned to the country of his nationality: see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379.


case_title: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379


case_text: The Tribunal's assessment of the appellant's likely profile with the Burmese government is perhaps attended by another difficulty. The Tribunal seems to have found that the appellant should be characterised as a 'low-profile' rather than 'high-profile' anti-government protestor, notwithstanding his political activities in Australia and the fact that his activities in Burma had previously brought him to the adverse attention of the authorities. Relying heavily on this categorisation, the Tribunal accepted that 'the [appellant] may be questioned about his activities in Australia and that he could be watched for a period after returning home', but that the appellant's profile was such that he would not be persecuted if he returns to Burma. There is to my mind a degree of artificiality or stereotyping about the process of categorising an applicant as either 'high-profile' or 'low-profile'. This process carries with it a risk of obscuring the fundamental question that the Tribunal is required to consider, namely whether an applicant has a well-founded fear of persecution for a Convention reason. In NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at 38 [161] , Hayne and Heydon JJ said that the risks of classification are acute: 'Putting an applicant in one class rather than in another may determine the outcomes of the inquiry; the defining characteristics of the class that is chosen may eliminate from consideration matters that bear upon the chances of the applicant being persecuted.'


case_text: There is clear authority that the Tribunal's failure to consider a behaviour modification claim of the kind that arose in this case amounts to jurisdictional error: see Appellant S395/2002 , esp per McHugh and Kirby JJ at 493 [51] and 493 [53], and per Gummow and Hayne JJ at 500 [80] and 503 [88]-[89]; see also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287.


case_text: In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [39] , French J concluded that '[a] decision infected by jurisdictional error is not "a decision made under [the Migration Act ]" and is therefore not within the definition of "privative clause decision" under s 474(2) and (3)'. In Plaintiff S157/2002 , Gaudron, McHugh, Gummow, Kirby and Hayne JJ concluded at 506 [76], that s 474 of the Migration Act must be read 'so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the [Migration Act]' because an administrative decision which involved jurisdictional error was 'properly regarded, in law, as no decision at all': see also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597, per Gaudron and Gummow JJ at 615 [51].


case_title: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757


case_text: In any event, the Tribunal did consider independent information which indicated that, while there was some tension between black South Africans and foreigners in some areas of South Africa, there was no mention of events involving attacks on South African citizens of Indian ethnicity. The Tribunal's reliance on that material was a matter for the Tribunal and it was under no obligation to search for further country information to support the appellant's claims (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561, SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] , SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [16] ). 30 The appellant has failed to demonstrate error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal. He has not made out any of the matters set out in his grounds of appeal. Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 19 November 2008 The appellant was self represented Counsel for the first respondent: Ms A Mitchelmore Solicitor for the first respondent: Sparke Helmore Date of Hearing: 5 November 2008 Date of Judgment: 5 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1743.html


case_outcome: considered

case_text: The appellant was born in India but is a citizen of South Africa. He arrived in Australia on 8 September 2007 and on 19 October 2007 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. The application was refused by a delegate of the Minister. The delegate's decision to refuse the protection visa was affirmed by the Refugee Review Tribunal ('the Tribunal'). An application for review of the decision of the Tribunal was dismissed by Scarlett FM ( SZMEZ v Minister for Immigration [2008] FMCA 1097). 2 The appellant appeals from the decision of Scarlett FM. 3 The appellant applied for an adjournment of this appeal for some months. He notified the first respondent's legal representatives of the application for adjournment on the morning of the hearing of the appeal. The application for adjournment was opposed.


case_text: The advancement of religion is a charitable purpose. Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 583 set out the legal definition of charity: "'Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads." The High Court has recently confirmed that, unless a contrary intention is apparent, the use of the word "charitable" in a statute is a reference to the technical legal meaning as defined by Lord Macnaghten in the above passage: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1 at [18] fn 6 per Gleeson CJ, Heydon and Crennan JJ. No contrary intention is apparent in the Act.


case_outcome: applied

case_title: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1


case_text: There is no doubt that the advancement of religion includes missionary work: Baptist Union of Ireland (Northern) Corporation Ltd v Commissioners of Inland Revenue (1945) 26 TC 335 (Court of Kings Bench of Northern Ireland). This is so whether that work is conducted within Australia or overseas. However, an organisation that does missionary work will not qualify as a charitable institution if its purpose is not exclusively charitable ( Attorney-General (NSW) v Adams [1908] HCA 51 ; (1908) 7 CLR 100 at 113-114) unless the non-charitable purposes are merely incidental to the charitable purposes: Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1 ; [1953] AC 380 at 395-396 per Lord Normand, at 402 per Lord Reid, at 405 per Lord Cohen.


case_title: Attorney-General (NSW) v Adams [1908] HCA 51 ; (1908) 7 CLR 100


case_title: Inland Revenue Commissioners v City of Glasgow Police Athletic Association [1953] UKHL 1 ; [1953] AC 380


case_text: The starting point in determining the essential object of an institution is its constitution or articles of association. However, this will not always be determinative since "[t]he skill of Chancery draftsmen is well able to produce a constitution of charitable flavour intended to allow the pursuit of aims of a non-charitable or dubiously charitable flavour": Attorney-General v Ross [1986] 1 WLR 252 at 263 per Scott J. Similarly, the constitution of a legitimate charity may be drafted in such a way as to obscure that legitimacy, whether through the inexperience of the drafter, the mistaken belief that the organisation's charitable nature will never be questioned, or otherwise. Where it is unclear from the listed objects of an organisation what its main purpose is, or where the evidence shows that the listed objects do not reflect the actual purpose of the organisation, it is appropriate to look to the activities of the organisation together with the expressed objects. In my view, this is not a case where the listed objects leave it unclear what is the main purpose of the organisation. Nor is there evidence that the stated objects do not reflect the actual purpose of Word. The first six objects in paragraph (a) of the objects (set out above at [9]) are clearly related to Word's evangelising activities. As for the remaining objects, I am satisfied, as was the Tribunal, that their comprehensive nature is more likely to reflect a degree of caution on the part of the drafter to ensure that no necessary or desirable act would be prohibited because of an unintended omission from the list. 29 The Tribunal's finding in respect of the period from 1986 or 1987 to the establishment of Bethel Funerals in 1996 was as follows: "Between 1986 or 1987 and 1996, the sole activity of the applicant was the generation of income from interest earned on deposits from individuals seeking to support those fund raising activities. Its constituent documents prohibited distribution to members of the company and the income generated was applied solely for the benefits of [Wycliffe] as the primary recipient with small contributions to other similar religious organisations. It pursued those objectives solely in Australia and, as such, satisfied the requirements of Item 1.1 of s 50-5 and s 50-50(a) of the Act and was entitled to be endorsed as exempt from income tax for that period as an institution for the advancement of religion." 30 This finding raises three questions of law which the Commissioner says, for the purposes of the period from 2002, were answered erroneously by the Tribunal. The first is the Commissioner's submission that there was insufficient evidence for the Tribunal to conclude that the payments made by Word to Wycliffe and other organisations were used by them for charitable purposes. No such conclusion expressly appears in the Tribunal's reasons but I agree with the Commissioner's submission that that is the only basis on which the Tribunal could have concluded that Word's activities were charitable.


case_text: In Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598, Fox, Deane and Morling JJ said, at 601: "An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to an error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based." Clearly, in this case there was evidence that Wycliffe and the other organisations used the money received from Word for charitable purposes. More importantly, there was also evidence that Word intended and believed that Wycliffe and the other organisations would use the money for charitable purposes. It follows that no error of law has been made out.


case_text: The second question of law that arises from the Tribunal's findings in respect of this period is whether the generation of income from interest earned on deposits is a sufficiently religious activity to establish Word as a charity. Word relied on a number of cases in support of its contention that fund-raising may be part of a charitable purpose. With one exception, I have not found these authorities to be of great assistance. The exception is Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73. In that case, the Council was a not for profit organisation that published reports of judicial decisions. It was entitled to and did charge for its services but was prohibited from distributing profits to its members. The Commissioners of Inland Revenue argued that the purpose of the Council was to carry on the trade of publishers and sellers of law reports and that this was not a charitable purpose. They said that no legal distinction could be drawn between the Council and a similar publisher that profited from its publishing and selling law reports. The Court of Appeal rejected this argument. Russell LJ said, at 86: "The fact that the association carries on a trade or business is admittedly not inconsistent with a charitable character in its objects. The difference between the two cases is in my view a vital distinction. The element of unselfishness is well recognised as an aspect of charity, and an important one. Suppose on the one hand a company which publishes the Bible for the profit of its directors and shareholders: plainly the company would not be established for charitable purposes. But suppose an association or company which is non-profit-making, whose members or directors are forbidden to benefit from its activities, and whose object is to publish the Bible; equally plainly it would seem to me that the main object of the association or company would be charitable the advancement or promotion of religion." 34 In the same case, Sachs LJ said at 90 that: "it is clear that the mere fact that charges on a commercial scale are made for services rendered by an institution does not of itself bar that institution from being held to be charitable so long, at any rate, as all the profits must be retained for its purposes and none can enure to the benefit of its individual members". 50 It is clear from the passages from the Incorporated Council of Law Reporting case and the Scottish Burial case that the key to determining charitable status is motive. An investigation of motive cannot be conducted without considering the ultimate object of an organisation's activities. It follows that Word is right to argue that Wycliffe's activities are relevant to whether Word is entitled to charitable status. I also accept the corollary, namely that the location of Wycliffe's activities is also relevant.


case_text: A case with some similarity to the present is Scottish Burial Reform and Cremation Society Ltd v Glasgow Corporation [1967] UKHL 3 ; [1968] AC 138. In that case the Society carried on a crematorium for which fees were charged. The fees were not distributed to members and were re-invested in the Society. It was held that the provision of cremation services was a charity for public benefit. It was argued against the Society that the charging of a fee for the cremation services meant that their provision could not be charitable. Lord Reid (with whom Lord Guest agreed) said, at 147-148: "[I]t has never been held that objects, otherwise charitable, cease to be charitable if beneficiaries are required to make payments for what they receive. It may even be that public demand for the kind of service which the charity provides becomes so large that there is room for a commercial undertaking to come in and supply similar services on a commercial basis. But no authority and no reason has been put forward for holding that when that stage is reached the objects and activities or the non-profit-earning charitable organisation cease to be charitable." See also at 149 per Lord Upjohn and at 156-157 per Lord Wilberforce. Lord Pearson, at 157, concurred. 36 While these cases are of assistance to Word, they do not entirely answer the question. The proposition for which they stand is that where an organisation engages in an activity that has a charitable purpose, that purpose will not be lost where a profit is made in conducting that activity, provided that the profit is not distributed to members and is used exclusively (save for allowable incidental purposes) for charitable purposes. They do not address the question whether an activity that is not in itself charitable, but that is conducted for the purpose of producing income to be used for a charitable purpose, may itself be charitable. 37 Nonetheless, I think it is clear from the above passages that the making of a profit through trade or business is not necessarily inconsistent with a charitable purpose and that the true question to be asked is the purpose of the making of the profit. If the purpose is commercial then the exclusive purpose of the organisation is not charitable; if the purpose is selfless then it may be. Prior to 1996, the sole profit-making activity engaged in by Word was the investment of moneys provided by public investors who shared Word's beliefs and aims. The profits thereby made were then provided to Wycliffe and similar organisations. If, consistent with my understanding of the passages cited above, the true focus of the enquiry is on the purpose and not the manner of the profit-making, then it is clear that Word's purposes were, up to 1996 and subject to the second matter which I will come to shortly, charitable. 50 It is clear from the passages from the Incorporated Council of Law Reporting case and the Scottish Burial case that the key to determining charitable status is motive. An investigation of motive cannot be conducted without considering the ultimate object of an organisation's activities. It follows that Word is right to argue that Wycliffe's activities are relevant to whether Word is entitled to charitable status. I also accept the corollary, namely that the location of Wycliffe's activities is also relevant.


case_text: Some assistance may be found in the rating cases. Statutes imposing rates on property are frequently subject to exemptions for property used exclusively for charitable purposes. In Ryde Municipal Council v Macquarie University [1978] HCA 58 ; (1978) 139 CLR 633, the High Court by majority of 3 2 held that a 'market' at Macquarie University consisting of retail and business premises let out to banks and shops for the benefit of students and staff was entitled to rating exemption under the relevant statute. The reason was that the enterprises run at the market were desirable for the functioning of the university and a use of the site for the purposes of the university: see [1978] HCA 58 ; (1978) 139 CLR 633 at 643 644 per Gibbs ACJ and at 650 per Stephen J (with whom Murphy J concurred). 40 However, where the commercial activity is neither part of the charitable purpose of the occupier nor merely incidental to that purpose, and is used only to generate income, the land will not qualify for a 'sole use' exemption because the land will not have been 'used' by the occupier: Commissioners of Taxation v Trustees of St Mark's Glebe [1902] AC 416; Ryde Municipal Council v Macquarie University [1978] HCA 58 ; (1978) 139 CLR 633 at 643 4 per Gibbs ACJ.


case_text: Where the commercial activity is not a purpose of the university but is merely incidental to the carrying out of the purpose, the land on which it is conducted will still be used exclusively for charitable purposes. So in Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation [1952] HCA 4 ; (1952) 85 CLR 159, the sale for profit of produce grown at a facility for delinquent boys, an activity which the High Court held to be merely incidental to the charitable purpose of the occupier of the land, did not preclude the property from being exempt from the rating statute.


case_text: However, where the commercial activity is neither part of the charitable purpose of the occupier nor merely incidental to that purpose, and is used only to generate income, the land will not qualify for a 'sole use' exemption because the land will not have been 'used' by the occupier: Commissioners of Taxation v Trustees of St Mark's Glebe [1902] AC 416; Ryde Municipal Council v Macquarie University [1978] HCA 58 ; (1978) 139 CLR 633 at 643 4 per Gibbs ACJ.


case_outcome: approved

case_text: There is a large body of law on this question in the United States: see D E Buckner, 'Property Used as Dining Rooms or Restaurants as within Tax Exemptions Extended to Property of Religious, Educational, Charitable, or Hospital Organizations' 72 ALR 2d 521. Some decisions favour the taxpayer and others favour the authorities. In some cases, the different results can be explained by differences in the wording of the relevant statutes or the degree to which the property of disputed use is integrated into the remainder of the property of the organisation. The leading textbook on trusts in the United States, Scott on Trusts , cites the decision of the Supreme Court of Illinois in School of Domestic Arts and Science v Carr 322 Ill 562, 153 NE 669 (1926) and concludes that where a charitable organisation applies any profits made by it to its charitable purposes, it will not thereby lose its charitable status: A Scott & W Fratcher, The Law of Trusts , 4 th edn, Little, Brown & Company, 1989) SS376. The School of Domestic Arts case was concerned with a tax on the property occupied by the School. The School conducted a restaurant located within its premises. The Court said at 322 Ill 562 at 569 570, 153 NE 669 at 672: "In the case at bar the school is supported by pay students, the proceeds from the public restaurant, and gifts from various people. The facts alleged and admitted are that no profit whatever is made; that a deficit exists each year and is paid by gifts from benevolent women; that every cent of revenue goes toward the operation of the school ... It cannot be questioned that such teaching in all its several branches is a benefit to the students, makes it possible for some of them to earn a living, and indirectly benefits the public and improves the happiness of man. The premises at No 6 North Michigan Avenue comprise the entire fifth floor of the Tower building and are primarily used as a school; 699 students receiving instruction when the bill was filed. Though the restaurant is also operated upon the same premises it is used in connection with the school and as an outlet for food cooked by the students, some of whom act in the capacity of waitresses. The restaurant also furnishes practical training for some of the students studying that branch of work. No part of any of the property was used for any purpose except in connection with and for the benefit and advancement of the school. We are of opinion appellant is a charitable organization and the property here involved is actually and exclusively used for the charitable purpose for which appellant was organized and is therefore exempt from taxation ..." To the same effect is Decatur Sports Foundation v Department of Revenue 177 Ill App 3d 696, 532 NE 2d 576 (Il Ap Ct, 4 th Dist, 1988). As will have been apparent, I agree with this approach. It accords with the thrust of the decisions I have cited at [33] [35].


case_title: Decatur Sports Foundation v Department of Revenue 177 Ill App 3d 696, 532 NE 2d 576


case_outcome: distinguished

case_text: The Commissioner argued that, consistently with the judgment of Dixon J in Roman Catholic Archbishop of Melbourne v Lawlor [1934] HCA 14 ; (1934) 51 CLR 1, it is necessary to draw a distinction between purposes of religion and things conducive to the good of religion. He characterised the generation of funds and distribution of those funds to Wycliffe as possibly being conducive to the good of religion, but as not being for the purposes of religion. The distinction is derived from the decision of the Privy Council in Dunne v Byrne [1912] AC 407, where it was held that an activity may be conducive to the good of religion but not itself be charitable. An example, taken from the judgment of Griffith CJ in the High Court in the same case ((1910) [1910] HCA 75 ; 11 CLR 637), is of advances made to government bodies for the purposes of obtaining funding to be used for religious purposes. Such advances would not themselves be for the purpose of religion although they might be conducive to the good of religion. 44 I do not think the distinction referred to by Dixon J in Lawlor assists the Commissioner. It is clearly directed at the difference between activities that have a direct religious purpose and other activities that are incidental and beneficial to the religious purpose but are not themselves directly religious in purpose. The distinction that the Commissioner really calls for is one between an activity that is clearly religious in purpose and that, on the one hand, is conducted by the taxpayer itself and, on the other hand, is conducted through an intermediary such as Word. That is a wholly artificial distinction. The charitable purpose of an activity cannot depend on whether it is conducted from start to finish by one entity or whether two or more entities with different skills join together to jointly conduct it. The Commissioner's argument is inconsistent with the corporate structure of many contemporary charities which are complex and involve the use of separate legal entities to perform separate functions. Where they are all working together to pursue a common, charitable purpose it is artificial to consider the purpose of each entity separately. 45 The final question of law which the Commissioner contends was wrongly answered by the Tribunal in the paragraph cited above at [29] concerns the place where Word conducted its business. It will be remembered that s 50-50 of the Act requires a charitable institution to satisfy one of four alternative tests, one of which (paragraph (a)) is that the institution "has a physical presence in Australia and, to that extent, incurs its expenditure and pursues its objectives principally in Australia" . The Tribunal held that Word satisfied this test. It is not suggested that Word could satisfy any of the other tests in s 50-50. 46 Paragraph (a) of s 50-50 is curiously drafted. It requires three tests to be met: (a) that the institution has a physical presence in Australia; (b) that the institution incurs its expenditure principally in Australia; and (c) that the institution pursues its objectives principally in Australia. Each of these tests is, of itself, relatively straightforward to apply. The difficulty is the words "to that extent" that connect requirement (a) to requirements (b) and (c). The words appear to cover the situation of an institution that has a presence both in Australia and elsewhere. In such a case, it seems that the institution is only required to incur its Australian expenditure principally in Australia and pursue its Australian objectives principally in Australia. In other words, were an institution to have an office in Australia and a similar office in New Zealand, and the expenditure of the Australian office was incurred principally in Australia and the objectives of the Australian office were pursued principally in Australia, then the fact that the New Zealand office may incur expenditure and pursue objectives principally in a place that is not Australia, does not disqualify the institution from satisfying the paragraph.


case_text: The Tribunal found that "it is difficult to consider a commercial funeral business as having an objective of the advancement of religion" and that "the business was a commercial operation for the purpose of making a commercial profit" . The Tribunal relied on the decision of Priestley JA (with whom McHugh JA agreed) in Glebe Administration Board v Commissioner of Pay-roll Tax (1987) 10 NSWLR 352, where his Honour said, at 365: "In my opinion the Board was not at any relevant time a religious institution. It was a statutory corporation doing commercial work within limitations fixed by reference to religious principles. It was staffed by persons who wished to observe the religious principles giving rise to the limitations on the Board's commercial activities. The property in its ownership both increased in value and gave rise to revenue. Capital was held for the benefit of a religious institution and large amounts of revenue were handed over to that institution. To my mind all these matters result in it being accurate to describe the Board as a legal entity working in a commercial area, guiding its commercial conduct by the principles of a religious institution and, in ordinary language, working for that religious institution. I do not think that this legal entity can either by an ordinary or a technical use of language be accurately called a religious institution." 57 This case does not aid the Commissioner. Its facts are distinguishable from the present case. It concerned a statutory body exercising property ownership and investment powers given to it by statute. The Board was required by statute to hold and invest church property and to deal with any proceeds. Its purposes were thus defined by statute. This is to be contrasted with Word, which is an independent organisation which has chosen to apply funds that it raises to Wycliffe and other religious bodies. The Board's manner of operation was also different from Word's. It lent money for short terms at commercial interest rates and applied funds for church activities generally, rather than the specific activities supported by Word. Finally, the Board claimed to be a religious institution not, as in the present case, a charitable institution. Word concedes that it cannot be a religious institution. 58 In my view, in concluding that the running of a funeral business could not advance religion, the Tribunal fell into two errors. The first was to consider the funeral business in isolation from the remainder of Word's operations. There was no evidence to suggest that, from the commencement of Bethel Funerals, Word ceased receiving money from investors. The entity claiming to be a charitable organisation is Word, not the Bethel Funerals operations of Word. Word's activities as a whole must be considered when determining whether its purposes were charitable. 59 When such a consideration is undertaken, the second error becomes clear. Word's purposes as a whole were to raise money for provision to Wycliffe and similar organisations. This was true both before and after the establishment of Bethel Funerals. It was only the manner of raising the money that changed; the purpose for doing it remained the same. The Tribunal's error appears to have involved drawing an unwarranted distinction between active and passive investment. It seems to have assumed that it may be charitable for an organisation to receive funds from investors who may or may not have been encouraged to support its goals and ideals, but that it cannot be charitable for the organisation to actively establish a business to derive similar income. 60 The Tribunal's distinction is at odds with the practice of contemporary charitable organisations. With the decline of the welfare state, charitable organisations are expected to do more with the same resources. Reliance on donations alone will, in many cases, be insufficient. Hence many charitable organisations have established business ventures to generate the income necessary to support their activities. There may appear to be a vast difference between selling lamingtons at a church fête and selling funeral services, but where the object of raising the funds is the same, I can no see no reason to draw a legal distinction between the two. I again refer in this connection to the cases referred to at [33]-[35]. 61 It follows that, for the period from 1 July 2000 to 1 July 2002, Word was a charitable institution under item 1.1 of the table at s 50-5 of the Act and is entitled to endorsement accordingly. The cross-appeal is therefore allowed. Word's alternative argument that its articles and memorandum of association created an instrument of trust need not be considered. 62 As set out above at [16], Word established the Foundation from 1 July 2002 to carry on the business of Bethel Funerals. This effected a significant change from the position prior to that date, when Bethel Funerals was merely a part of Word rather than run through a separate legal entity. The Tribunal held that "the activities after 1 July 2002, being the same as those prior to 1996, entitle [Word] to endorsement as a charitable institution from that date."


case_text: Section 43 of the Administrative Appeals Tribunal Act 1975 provides that, for the purposes of reviewing an administrative decision, the Tribunal may exercise all the powers and discretions that are conferred on the original decision-maker. In Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453, Lockhart, Wilcox and Burchett JJ said, referring to s 43: "In exercising those powers and discretions the Tribunal was bound to consider the facts as they were proved in evidence before the Tribunal, making the decision which, upon that evidence and at that time, was the correct or preferable decision to be made in considering the objection. The Tribunal was not confined either to the material which was before the Commissioner, as primary decision-maker, or the events which had occurred up to that time ..." 67 It follows that not only was the period from 1 July 2002 before the Tribunal, but indeed the Tribunal was obliged to consider that period. 68 Thirdly, the Commissioner says that the evidence before the Tribunal was insufficient to establish the finding that the activities of Word from 1 July 2002 were the same as those prior to 1996. The Commissioner points to the relative paucity of material in evidence for the period from 1 July 2002. I accept that if the only question for the Tribunal had been Word's operations from 1 July 2002 and there had been no evidence of its operations prior to then, the Tribunal would have had difficulty reaching a view on whether Word qualified for charitable status. However, this was not the situation. Word's case was that the only significant change in its operations from the period immediately prior to the establishment of Bethel Funerals in 1996 to the termination of its activities in 2005 was the existence and operations of Bethel Funerals. A taxpayer that seeks to establish that it is a charity is not required to prove that status on every single day in the period for which it claims that status. Once it has established that it is a charity at a particular time, it is entitled to rely on that finding until such time as it is proved that its activities have changed to the extent that it is no longer charitable. The Commissioner has not pointed to any additional changes to Word's operations from 1 July 2002. He did not seek to cross-examine Word's witnesses on its activities from 1 July 2002. In these circumstances, there was evidence before the Tribunal that entitled it to find that Word's operations from 1 July 2002 were the same as those prior to 1996.


case_text: High Court of Australia has reversed the decision of the Full Court in SZKTI : see Minister for Immigration and Citizenship v SZKTI and Another (2009) 258 ALR 434. The High Court found that the Tribunal was entitled to obtain information as it required and that the requirements of s 424(2) did not restrict the general power of the Tribunal to obtain information under s 424(1) which does not specify how the information is to be obtained. Accordingly, it was unnecessary for the Tribunal to provide an invitation when it sought to obtain the information, because it sought to obtain the information via s 424(1). It would appear from [47] of the High Court's decision that the Tribunal, at least when making enquiries by telephone, can seek information under s 424(1), even if the information as sought would be classed as 'additional information' for the purposes of s 424(2). That is, the mere fact that the Tribunal is seeking 'additional information' does not require it to proceed under s 424(2) and the procedural requirements which flow from it, at least where phone enquiries are concerned. It would appear that this is a significant change in the s 424 jurisprudence, as will be shown below. The Court notes that the parties have not had the opportunity to make submissions based on the High Court's decision in SZKTI because such decision was still reserved at the time the parties made their further submissions. Each indicated that they wished the Court to proceed to deliver judgment in this appeal notwithstanding the decision of the High Court in SZKTI . The Court therefore makes the above observations in respect of the consequences of SZKTI with that wish in mind. The Court does not consider that SZKTI alters the law in relation to the specific issues arising in this appeal. Accordingly, further submissions from the parties are not required.


case_outcome: followed

case_text: hearing of this appeal was fixed for 19 November 2008. However, since the decision in SZLPO v Minister for Immigration and Citizenship and Another (NSD 1227 of 2008); SZLQH v Minister for Immigration and Citizenship and Another (NSD 970 of 2008); SZLPP v Minister for Immigration and Citizenship and Another (NSD 1486 of 2008) [2009] FCAFC 51 ; (2009) 255 ALR 407 was then pending before the Full Court of the Federal Court of Australia, the hearing of these proceedings was adjourned. On 4 May 2009 the Full Court gave judgment in SZLPO . The Court then contacted the parties to enquire whether they wished to make further oral or written submissions. The parties replied in the affirmative. The Minister filed a Notice of Contention on 18 August 2009, both parties made further written submissions and the Court listed a further hearing on 18 August 2009 for oral submissions. The following issues are raised by the Minister's Notice of Contention: The learned Federal Magistrate erred in concluding that the request to the Australian Ahmadiyya Association was a request falling within the purview of s.424 of the Act, thereby enlivening the requirements of s.424B of the Migration Act 1958 (Cth). The learned Federal Magistrate erred by concluding that there was no jurisdictional error in the Tribunal's decision because the: a Tribunal was required to confirm the address of the Australian Ahmadiyya Association for the purposes of the review and that its (inferred) failure to do so rendered ss.441A(4) , 441C (4) of the Act and regulation 4.35 of the Migration Regulations 1994 (Cth) ("Regulations") inoperable; and b the effect of the preceding sub-paragraph was that the absence of a prescribed period for response for the purpose of s.424B(2) was not enlivened. The learned Federal Magistrate erred by concluding that s.424B(1) applied in the present case because the Australian Ahmadiyya Association is not a natural person. Contrary to the conclusions of the Federal Magistrate as set out in paragraphs [1] to [3] above, the request to the Australian Ahmadiyya Association did not come within the ambit of ss.424 and 424B because: a the Australian Ahmadiyya Association is not a natural person. b it was not a request seeking " additional information " within the meaning of s.424 of the Act as no information had previously been provided by the Australian Ahmadiyya Association or Mr Mahmood Ahmed in connection with the appellant's review. c Even if the Tribunal did breach s.424 of the Act, any such error arguably did not go to jurisdiction. In the alternative, if the Court finds jurisdictional error the first respondent respectfully asks that the Court exercise its discretion and withhold relief. It is convenient to deal with the issues raised by the Notice of Contention since the resolution of those issues will assist in the resolution of this appeal. The critical issue is whether s 424(2) of the Act applied to the inquiry made by the Tribunal in its September 2007 letter. The resolution of this issue in the negative would have the consequence that the issues raised by the appellant, each of which concern the application of the requirements of s 424(2) , will not arise. The appellant relies upon the letters of 25 July 2000 and 2 September 2007 ('the false letters') as constituting original 'information' supplied to the Tribunal, and submits that the Tribunal's September 2007 letter is therefore a request for 'additional information'. The appellant alternatively submits that the Tribunal obtained 'information' by its request of the Australian Association made in 2004. Accordingly, its 2007 request was one for 'additional information'. The appellant submits that as the September 2007 letter was seeking 'additional information', the Tribunal was required to comply with the requirements of s 441A by giving notice of the request to the last address provided to the Tribunal (s 441A(4)(c)(i)) or to the last residential or business address of the person (s 441A(4)(c)(ii)); that the invitation to provide the additional information was required to specify the way in which the information was to be provided as required by s 424B(1); and also to specify the time in which the information was to be furnished as required by s 424B(2). The appellant submits that failure to comply with such procedures led to jurisdictional error. In SZLPO the Full Court considered the nature of 'additional information' within s 424 of the Act. In those proceedings the appellant claimed to be a member of the Ahmadiyya faith and to have suffered persecution by Sunni Muslims in Bangladesh. In support of his claim he provided the Tribunal with a letter on the letterhead of the ' Ahmadiyya Muslim Jamaat, Krora, Bangladesh ' apparently signed by the President of that organisation which purported to commend the appellant as an Ahmadi. The letter was addressed 'To Whom it May Concern'. Such letter had been provided prior to the hearing and at the hearing the appellant agreed that the Tribunal should make inquiries to verify his claims. As a result the Tribunal accordingly wrote to the Department of Foreign Affairs and Trade ('the Department') asking it to conduct inquiries with the office of the National Amir in Bangladesh via the Ahmadiyya Muslim Association of Australia. Subsequently the Department furnished the Tribunal with information provided by the National Amir. It confirmed that the appellant was not a member of the Ahmadiyya Muslim Jamaat. The Tribunal thereafter wrote to the appellant furnishing the information it had received from the Department and inviting the appellant to comment. The appellant claimed that the Tribunal's decision was affected by jurisdictional error because the Tribunal had ' invited the Amir to give additional information ' and as such s 424(3) required the Tribunal's invitation to be given to the National Amir by one of the methods specified in s 441A. The Full Court in SZLPO referred to the decisions in SZKTI and in SZKCQ . It summarised the findings in those two decisions as follows at [85]: SZKTI and SZKCQ establish that: (1) s 424 is a source of the Tribunal's power to get information (subs (1)) and is the source of the Tribunal's power to get "additional information" that falls within the meaning of that expression in s 424(2) (subs (2)), other sources for the getting of information having been noted by us at [13]-[19] above; (2) where there is an invitation from the Tribunal to give "additional information" within the meaning of s 424(2), s 424(3) makes it mandatory for that invitation to be conveyed by a document given to the invitee by one of the methods specified in s 441A; (3) failure to comply with s 424(3), where it applies, is jurisdictional error; (4) unless it is provided in the course of the hearing, information will be "additional information" within s 424(2) at least if it is additional to information previously given by the particular invitee to the Tribunal. The fourth proposition above leaves to be resolved by us the question whether information can be "additional information" within s 424(2) if it is additional to information obtained by the Tribunal from sources other than the invitee. [Emphasis in the original] The High Court's decision in SZKTI at [47] appears to render (1) and (2) above incorrect insofar as s 424(2) would appear to no longer be the only source of the power of the Tribunal to seek 'additional information', at least where such 'additional information' is sought by telephone. However, the High Court's decision in SZKTI does not appear to disturb the observation in (4) above, which is the relevant matter for consideration in this appeal. The reasoning grounding (4) is relevantly found in paragraph [99] of SZLPO where the Full Court said: The view that "additional information" means "information additional to any information already possessed by the Tribunal, whether it came from the invitee or not" is problematic. The written invitation régime would then apply to all information that the Tribunal might invite a person to give after the Tribunal first became seized of any information at all unless a contrary indication could be found (cf SZKCQ at [49]-[51])). Presumably the first time the Tribunal becomes seized of information is when the Secretary sends documents to the Registrar under s 418(3). We suggest that a more limited meaning of "additional information" must be looked for. Again, that which suggests itself is "information additional to information previously given to the Tribunal by the invitee". The Full Court said at [88]: It [s 424(2)] is also not engaged when a tribunal contacts a library, agency or body that it has had no previous contact with in relation to a particular review because it is not seeking additional information from that person. At [36] of SZMBS the Full Court, having cited SZLPO , said: It is significant that the letter of 3 February 2008 from the Local Church is not addressed to the Tribunal and was not provided to the Tribunal by Brother Poh. Rather, it was given to the Tribunal by the appellant. Thus, as at the time when the Tribunal telephoned Brother Poh, Brother Poh had not given any information to the Tribunal concerning the appellant. At [34] the Full Court observed: The language of s 424(2) is subject to possible ambiguity. Section 424(2) refers to the Tribunal inviting the person to give additional information . A question arises as to whether that refers to information that is additional to information that the Tribunal has already obtained from any source, such as from the applicant or pursuant to s 424(1), or to information that is additional to information that the Tribunal has already obtained from the person to be invited. The possible inconvenience referred to above might suggest that s 424(2) is concerned with inviting a person who has already given information to the Tribunal to give additional information. In such a case, the person may well have provided an address to the Tribunal in connection with the review. Accordingly, the preferable view is that s 424(2) refers to information additional to information previously given to the Tribunal by the person to be invited (see SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 at [99] - [100] ). At [37] the Full Court found: However, the Tribunal was not inviting Brother Poh to give additional information within the meaning of s 424(2). At most the Tribunal was making an enquiry as to whether Brother Poh had relevant information to give to the Tribunal. It did not invite him to give information, much less additional information. Was the 2004 letter 'information'? In the present appeal, the Tribunal was aware of the address of the Australian Association at the time it determined the appellant's application. As mentioned at [4], by letter dated 7 December 2004 the Tribunal had written to Mr Nasir Kahlon, General Secretary of the Australian Association, seeking information in respect of persons of the Ahmadiyya community generally. Such letter was written by the Senior Researcher, Country Research of the Refugee Review Tribunal. Relevantly the letter states as follows: The Tribunal is currently assessing the claims of a Bangladeshi citizen who states that he belongs to the Ahmadiyya community. The Tribunal would appreciate answers to the following questions: If the applicant approached the Ahmadiyya Association would he be provided with a form of certification stating that he is an Ahmadiyya? If so, how would the Ahmadiyya Association test his credibility? How else might an applicant have his claim to be an Ahmadiyya verified? In a letter, dated 3 September 1997, you informed the Tribunal that when an Ahmadi submits an application to the Department of Immigration "he/she always provides a letter with the application issued by us stating that the person is a member of our community". Is this still the case? Or was your statement in reference to the now defunct Ahmadi (Special Assistance) (Class BJ) visa? A copy of your earlier letter is attached. Please be advised that the Refugee Review Tribunal is an independent Tribunal set up by legislation to undertake merit review of applications for refugee status of persons in Australia. Our website URL at http://www.rrt.gov.au contains more information about the Tribunal. One of the functions of the Country Research Unit is to obtain information to support the review function of the Tribunal. The Court rejects the submission of the appellant that the mere placing of the 2004 letter from the Australian Association on the Tribunal's file rendered such letter 'information' for the purpose of the specific review in question as referred to in SZLPO and SZMBS . Were the false letters 'information'? In summary, the 2004 letter from the Australian Association was not 'information' since it did not relate specifically to the appellant; it was not provided by the appellant to the Tribunal; and it was not provided in connection with any review of the appellant. Further, the Tribunal's enquiry of the National Amir by its September 2007 letter was not a request for 'additional information' since the Amir had not previously been invited to provide information. That is, neither the National Amir nor the Australian Association had provided ' information additional to information previously given to the Tribunal by the invitee ': see SZLPO at [99]. It follows that the September 2007 letter was not a request for 'additional information' within s 424(2) of the Act. It follows from the above that the Federal Magistrate erred in concluding that the September 2007 letter from the Tribunal to the Australian Association was a request falling within the purview of s 424 of the Act, enlivening the requirements of s 424B of the Act. In view of the Court's conclusion, any issue of non-compliance with ss 424A, 424B or 441A of the Act does not arise for consideration. Accordingly, it is unnecessary to determine other issues raised by the Notice of Contention and by the appellant in his submissions.


case_text: SZMBS v Minister for Immigration and Citizenship and Another (2009) 176 FCR 141 the Full Court considered a letter headed 'TO WHOM IT MAY BE CONCERNED' [sic] written by the Minister of a local church stating: This is to confirm that [the appellant] has been meeting regularly with the church since August 2007. Please do not hesitate to contact William Poh ([mobile telephone number]) should you have a further enquiry. At [36] of SZMBS the Full Court, having cited SZLPO , said: It is significant that the letter of 3 February 2008 from the Local Church is not addressed to the Tribunal and was not provided to the Tribunal by Brother Poh. Rather, it was given to the Tribunal by the appellant. Thus, as at the time when the Tribunal telephoned Brother Poh, Brother Poh had not given any information to the Tribunal concerning the appellant. The 2004 letter did not contain any information in relation to the appellant, nor was it provided to the Tribunal by the appellant. Such information was not supplied in connection with any relevant review, but was information sought generally relating to persons who claimed to be of the Ahmadiyya faith. The information provided by the 2004 letter of the Australian Association was not therefore 'information' for the reasons provided in SZMBS at [36]. It must follow that the September 2007 letter could not therefore be a request for 'additional information' within s 424(2) of the Act. The Court rejects the submission of the appellant that the mere placing of the 2004 letter from the Australian Association on the Tribunal's file rendered such letter 'information' for the purpose of the specific review in question as referred to in SZLPO and SZMBS . Were the false letters 'information'? In this instance, the false letters provided by the appellant were not addressed to the Tribunal, nor were they provided to the Tribunal as the result of an invitation from the Tribunal. Consistent with the finding in SZMBS at [36] the letters were not 'information' provided by the National Amir. Any subsequent request by the Tribunal of the National Amir of Bangladesh could not therefore have been a request for 'additional information'. It follows that the alleged agency of the Australian Amir for the purpose of obtaining additional information does not arise, since no 'additional information' as referred to in s 424 was sought. There is a further reason for finding that the Tribunal's enquiry did not constitute a request for 'additional information'. The two letters provided to the Tribunal by the appellant and purportedly signed by the Amir were fabricated. They had not been written by the Amir. Accordingly, it could not be said that the Tribunal's request of the Amir was for 'additional information' if no information had previously been provided by him.


case_title: Friends of Hinchinbrook Society Inc v Minister for the Environment (No. 1) (1996) 69 FCR 1

case_text: Gunns also contends that there is no evidence that those persons who stand behind LFF do not have the funds to provide security, so that it can't be concluded that the litigation would be stifled because of a security for costs order. That submission is rejected. There is a relevant difference between members of a non-profit voluntary association formed for some public policy purpose and shareholders of a company. Members of LFF do not stand to gain any financial benefit from the proceeding. The proceeding is one in which LFF sues for its own benefit to advance a purpose or purposes for which it was formed; see Friends of Hinchinbrook Society Inc v Minister for the Environment (No 1) (1996) 69 FCR 1 at 21-22, per Branson J and Tigers AFC (Mayne) Inc v The AFL and Others [2000] FCA 1650 at [28] to [29] per Spender J.


case_title: Tigers AFC (Mayne) Inc v The AFL and Others [2000] FCA 1650


case_text: The discretion to make a security for costs order is wide and unfettered but must be exercised judicially; see Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3. As the only factor of any substance raised in support of the proposed order is LFF's impecuniosity, Gunns has not satisfied its onus of demonstrating that a security for costs order should be made. To hold otherwise would stifle the litigation and prevent an applicant with standing to bring the application from agitating a matter which it considers to involve questions of public importance and which seems, on the material currently before the Court, to be made bona fide and raises arguable questions of law. 15 The Court will order as follows: 1. The second respondent's motion dated 24 January 2008 is dismissed. 2. The second respondent pay the applicant's costs of, and associated with the motion, including the costs of compliance with subpoenas, to be taxed in default of agreement. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 30 April 2008 Counsel for the Applicant: Dr K Hanscombe SC with Ms F Gordon Solicitor for the Applicant: Bleyer Lawyers Pty Ltd Counsel for the First Respondent: Mr G Hill Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr T Walker Solicitor for the Second Respondent: Freehills Date of Hearing: 30 April 2008 Date of Judgment: 30 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/588.html


case_outcome: related

case_text: In the principal decision ( Hall v Repatriation Commission [2007] FCA 2021) , an issue was reserved as to whether or not the matter would be remitted to the Administrative Appeals Tribunal (the Tribunal). The applicant now seeks an order that this Court determine the matter, rather than remit the matter to the Tribunal. Counsel for the Repatriation Commission submits that is not a step which ought to be taken and I have been referred to a series of authorities, culminating in Repatriation Commission v Butcher [2007] FCAFC 36 ; (2007) 94 ALD 364, which stress the sparing nature of the potential use of the power granted by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) generally, and in particular, by s 44(7). 3 In my opinion, that submission is contrary to the principal decision see Hall [2007] FCA 2021 at [22] ). In my view, once the hypothesis was found to be reasonable, and once the facts were found as the Tribunal did, then, when the concept of beyond reasonable doubt is properly understood, the Tribunal could not properly find, as required by s 120(1) of the Veteran's Entitlement Act 1986 (Cth), that there was no sufficient ground for making the determination beyond reasonable doubt. 4 In my opinion, it is only at a very high level that to so hold may be regarded as a finding of fact. The findings of primary fact have been made by the Tribunal, and if it be a finding of fact that is made, then it seems to me that this is a very benign use of s 44(7). The course of having the matter remitted would lead to further delay and cost, and risks a misunderstanding of the effect of the principal decision if a submission such as that just made to me was made to the Tribunal. 5 Accordingly the decision of the Repatriation Commission under review is set aside and in lieu thereof I determine that the death of Robert Thomas Butler was war caused and that the applicant, Ruth Isobel Hall, is entitled to a war widow's pension as from 27 February 2005. Liberty to apply is reserved. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 24 January 2008 Counsel for the Applicant: Ms E Wood Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Repatriation Commission: Miss RM Henderson Solicitor for the Repatriation Commission: Australian Government Solicitor Date of Hearing: 20 December 2007 Date of Judgment: 20 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2109.html


case_outcome: referred to

case_text: test is objective. There is no requirement that every element of the potential cause of action in fact exists but rather that there may be entitlement to relief: see Hooper Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [39] ; Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] ; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] . In Alphapharm , Lindgren J at [50] said that it was not adequate that a party 'hopes to be comforted in taking the decision which it already has sufficient information to enable it to take' . If an exclusivity agreement in writing between Keycorp and Gemalto exists, it may contain details concerning the date or events causing its expiry. Accordingly, the existence of any such agreement would be a significant matter to HID in its determination of whether it should commence the foreshadowed litigation. Further, any correspondence between Keycorp and Gemalto which might indicate that Keycorp treats the exclusivity agreement to be at an end could also be of significance for such purpose. Any written memorandum or record, for example of a telephone conversation, between Keycorp and Gemalto relating to the termination of such exclusivity agreement in the relevant period, namely between 4 August 2008 and 25 August 2008, would serve the same purpose. The Court does not regard the claim for preliminary discovery as being one designed to strengthen or enhance the decision to commence proceedings. No such decision has yet been made, although HID has grounds for believing that it may be entitled to make a claim under the Trade Practices Act and possibly under promissory estoppel. The documents are sought for the purpose of providing sufficient information to enable a decision whether to make a claim. In this respect, any documents of the kind referred to in subparagraph 1(d) of the Application could be relevant. The Court is satisfied that HID does not have sufficient information to institute proceedings. The present circumstances are accordingly different to those considered by Lindgren J in Alphafarm . For the above reasons, the Court grants the application for preliminary discovery, in respect of the documents referred to in paragraphs 1(a), (b), (c) and (d) of the application. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 13 February 2009 Counsel for the Applicant: Mr Kidd Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Mr Fleming QC with Mr McGrath Solicitor for the Respondent: Henry Davis York Date of Hearing: 17 December 2008 Date of Judgment: 13 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/87.html


case_text: necessity to make enquiries from other sources was considered by Tamberlin J in CGU Insurance Ltd and Others v Malaysia International Shipping Corporation Berhad [2001] FCA 1223 ; (2001) 187 ALR 279 at [23] - [27] . At [25] his Honour said: The provision does not contemplate an order where some reasonable inquiries have been made but rather where all reasonable inquiries have been made. It appears to contemplate a reasonable exhaustion of alternative sources of information and, in any particular case, involves a pragmatic balancing of considerations. The power of the Court arises after the applicant has made all reasonable inquiries and finds that there is insufficient information to enable a decision to be made. There is no evidence of any attempts made by HID to ascertain from Gemalto whether the exclusivity arrangement existed. However, the question is whether it is reasonable to expect that HID would, prior to commencing litigation, inquire of Gemalto whether it held an exclusivity arrangement. That is, whether it was reasonable to expect that it would ask its competitor to provide information which relates solely to a commercial transaction made between Gemalto and Keycorp, in respect of which HID was an unsuccessful bidder. The Court is not persuaded that it was reasonable for HID, a commercial competitor of Gemalto, to have made such inquiries of Gemalto concerning the existence of any exclusivity arrangement between Gemalto and Keycorp. Therefore, such an inquiry was not necessary to satisfy the first requirement of O 15A r 6(b), namely that HID make 'all reasonable inquiries . '


case_text: ascertaining whether there is reasonable cause to believe that the necessary elements exist for a cause of action, the Court must determine that there is at least a reasonable cause 'to believe that each of the elements of the relevant cause of action might be established' : see Middleton J in Dartberg Pty Limited v Wealthcare Financial Planning Pty Ltd and Another [2007] FCA 1216 ; (2007) 164 FCR 450 at [44] .


case_text: test is objective. There is no requirement that every element of the potential cause of action in fact exists but rather that there may be entitlement to relief: see Hooper Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [39] ; Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] ; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] .


case_title: Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288


case_title: Malouf v Malouf [1999] FCA 710


case_text: Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [14] Tamberlin J referred to the principle that 'O 15A r 6 is to be beneficially construed and given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court in the light of the specific circumstances' . However at [19] his Honour referred to the necessity for an applicant for preliminary discovery to show 'more than a mere assertion that there is a case against a prospective respondent' . His Honour continued: The purpose of preliminary discovery is not to produce material which will strengthen or enhance a decision to commence proceedings but rather what is reasonably necessary to enable the decision to be made.


case_title: Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536


case_title: St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147


case_text: After the application was filed, a number of adjournments were occasioned by an application made by Mr Hudson in the Federal Magistrates Court ('the FMC application'). The FMC application, broadly, concerned the question of whether Mr Pascoe was validly appointed as Trustee of the Estate and whether the procedures subsequently adopted by him by which he objected to the discharge of Mr Hudson from bankruptcy were effective. On 10 August 2007 Wilson FM determined in Hudson v The Official Trustee & Ors [2007] FMCA 1357 that the Trustee was validly appointed and that the procedure by which he objected to the discharge of Mr Hudson from bankruptcy was effective. Subsequently Wilson FM dismissed the remaining matters in Mr Hudson's application, those orders being made on 17 August 2007. 4 The Trustee has established service of this application, effected on 10 November 2006. On none of the occasions when this matter has been before me has Mr Hudson appeared, despite service by the Trustee of letters informing him of each date on which this matter was next to be before the Court. As outlined in an affidavit of service of Melanie Cavanough sworn 2 July 2007, Mr Hudson was notified that the matter was to be heard today. The matter was called outside the Court and there was no appearance. 5 On 28 August 2007 a fax was received in my Chambers containing a notice of appeal from the decision of Wilson FM. The fax was not accompanied by any other documentation. In particular, there was no application for any stay of these proceedings pending the hearing of that appeal. Mr Pascoe presses to have the matter determined today. Apart from the number of times that the matter has already been before the Court, Ms Nash, who appears for Mr Pascoe, points to the remuneration and costs that have been incurred by the Trustee to date, which are well in excess of the amount available for distribution. Ms Nash also points to one of the proposed payments, namely, payment to the former wife and only creditor of Mr Hudson in the sum of $5,130.00. The evidence is that those moneys are due to Mrs Hudson as part of a settlement on her divorce from Mr Hudson, by reason of a miscalculation when the amount due was translated from New Zealand dollars to Australian dollars.


case_text: The notion that a person might become one of the people of Australia by absorption into the Australian community seems first to have been discussed by the High Court in Ex parte Walsh and Johnson; In re Yates [1925] HCA 53 ; (1925) 37 CLR 36. In that case at p 64 Knox CJ took the view that it followed from the opinions expressed in Minehan that: ... a person who has originally entered Australia as an immigrant may in course of time and by force of circumstances cease to be an immigrant, and become a member of the Australian community. He may, so to speak, grow out of the condition of being an immigrant, and thus become exempt from the operation of the immigration power. 28 Whether the view expressed by Knox CJ in Ex parte Walsh and Johnson remained the position in 1975 in respect of a person who had entered Australia after the Migration Act came into operation seems to me to be open to doubt. In The Queen v Forbes; ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168 at 172-173 Barwick CJ, with whom all other members of the High Court agreed, stated: It was said in O'Keefe v Calwell that immigration as a concept involves two elements (a) entry into the country and (b) absorption into the community of the country. Parliament clearly has authority to legislate with respect to both elements and laws which control those elements can be made under s 51(xxvii). It can say who may enter and it can say on what terms if at all a person so entering may become a member of the Australian community. In the Act Parliament has exercised these powers. It is there provided quite unequivocally that a person who is not already a member of the Australian community may not enter Australia except in pursuance of an entry permit. See definition of "immigrant" s 5(1) ss 5(2), 6(2). If he has no permit and enters Australia he is a prohibited immigrant. It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. (citation omitted) 36 As noted above, the Full Court in Moore referred to a "considerable period of time" being invariably required for absorption. Their Honours' view finds support in Ex parte Walsh and Johnson where Knox CJ spoke of a person growing out of the condition of being an immigrant "in course of time and by force of circumstances" (see [27] above). It seems to me that the period of approximately five months between the arrival of the infant Mr Charlie on Darnley Island and Independence Day was not a "considerable period of time" within the meaning of that expression as used in Moore. Their Honours, in my view, plainly envisaged a period of some years as being required for absorption. The period of approximately five months was, I conclude, plainly insufficient for Mr Charlie, together with his family unit, to have become part of the Australian community by absorption. This is so, in my view, notwithstanding that his parents: (a) intended, as I find, in April 1975 to settle permanently on Darnley Island; (b) did not, as I infer, absent themselves from Darnley Island frequently or for long periods of time; (c) had close family connections with Darnley Island and were connected to the island by Mr Charlie Snr's employment; (d) occupied a home of their own on Darnley Island; and (e) participated, as I infer, in Darnley Island community activities.


case_text: The question of the absorption of a child into the Australian community was considered by the Full Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236. At [49] the Full Court noted with apparent approval the following passage from the reasons for judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 at [45] - [46] : In relation to the question of absorption into the community French J said in Johnson at [45]-[46]: '45 The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell , Dixon J said (at 577): ... there does not appear to be any general agreement as to the tests for the application of this very vague conception. The word "absorption" is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question. 46 Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following: 1. The time that has elapsed since the person's entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record. This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, "Deportation, The Immigration Power and Absorption into the Australian Community" (1986) 16 Fed Law Rev 288.'


case_text: Nonetheless, under the Migration Act a person born in Papua after the commencement of the Citizenship Act required an entry permit to be entitled to enter or reside in any of the States or internal territories ( Re Minister for Immigration and Multicultural Affairs; Ex parte Ame [2005] HCA 36 ; (2005) 222 CLR 439 at [1] ). This was because Papua, as an external Territory, was not part of "Australia" for the purposes of the Migration Act ( Minister for Immigration and Multicultural Affairs v Walsh [2002] FCAFC 205 ; (2002) 125 FCR 31 at [15] - [21] cited with approval in Ex parte Ame at [1]).