case_text: A number of general principles have developed in relation to the concept of "unjustifiable hardship" within the terms of the DD Act . These principles include the following: • the issue whether the alleged discriminator is potentially subject to unjustifiable hardship arises only once the applicant establishes that the alleged discriminator has engaged in unlawful conduct: Cooper 93 FCR at 491-492, Sluggett 123 FCR at 568, Daglian [2003] FCA at [113]-[114] • the respondent bears the onus of showing unjustifiable hardship within the meaning of s 24(2): Cooper 93 FCR at 492, Sluggett 123 FCR at 568 • the concept of "unjustifiable" hardship suggests that some hardship is justifiable, and requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors: Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658 ; (2000) 100 FCR 306 at [48] .


case_outcome: cited

case_text: The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481).


case_text: Both the applicant and the Commissioner have submitted that s 9(1)(f) DD Act should be given its ordinary and natural meaning, and the Court need merely be satisfied that the animal has undergone a process of discipline and instruction to learn specific skills that enable it to assist a person to alleviate the effect of his or her disability. The respondent has submitted as an alternative that, if the dogs have been trained by the applicant, it is questionable whether such "training" satisfies the meaning in s 9(1)(f) DD Act . Further, the respondent submits that "trained" in the context of s 9(1)(f) carries with it the requirement that the animals are adequately trained to be allowed public access. The respondent refers to comments of McMurdo J in Matthews v Commissioner of Police [2005] QSC 122 where his Honour noted that it was not plain that the dogs in question in that case had been trained "in the sense which is relevant for the operation of section 9". 92 In my view however there is nothing in the DD Act , in particular s 9(1)(f) , which justifies an interpretation of the word "trained" beyond its ordinary meaning as found in the Macquarie Dictionary. I agree with the Commissioner that there is no requirement in s 9(1)(f) , elsewhere in the DD Act , or in the regulations made pursuant to the DD Act , either explicitly or by implication, that an animal: 1. Be trained by a particular type of trainer or organisation; 2. Undertake a particular amount of training; or 3. Be accredited by or registered with a particular agency or organisation. 97 In regard to comments of McMurdo J in Matthews (2005) QSC 122 , in that case it was not clear that the applicant suffered a disability within the meaning of the DD Act ; further there appeared to be no evidence before his Honour that the relevant dogs in that case were trained at all. As his Honour said in that case: "The applicant does not have a visual or hearing disability and it is not at all clear to me that his dogs are 'trained to assist the aggrieved person to alleviate the effect of the disability'. There is no evidence of any training apart from the applicant's own statement to me, in the course of his submissions, that he trains his dogs. It isn't plain that they are dogs trained in the sense which is relevant for the operation of section 9." 98 Accordingly, I do not find submissions with respect to this case helpful.


case_text: While I accept this approach, and propose to consider the applicant's claims of discrimination separately under s 6 and s 9 DD Act , in my view interpreting the sections as operating independently does not mean that they are to be interpreted in isolation, either from each other or the balance of the DD Act . As was pointed out by Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 ; (2003) 217 CLR 92 at 148, in considering provisions of the DD Act : "Each of these particular questions can be answered only by giving consideration to the relevant provisions of the Act, understood, as they must be, in the context of the Act as a whole ." (emphasis added) 31 So far as relevant in this case, s 4(1) DD Act defines "disability" in relation to a person as: ... ... ... (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 32 In summary, the applicant has submitted that, in addition to substance abuse disorder and dependence, he suffers a disability in the nature of a personality disorder, which is a disability within the meaning of s 4(1)(g). The respondent conceded in submissions, both written and oral, that the applicant did suffer a disability, however there was some conflict in the medical evidence as to the exact nature of the disability suffered by the applicant. Notwithstanding the concession as to existence of a disability, Mr Murdoch for the respondent submitted that there is a need for the Court to come to a factual conclusion as to the nature of the applicant's disability, because the concept of alleviation of a disability in the meaning of s 9 DD Act (upon which the applicant's case to a significant degree rests) can only be considered properly and effectively in this case in light of a precise, factual decision as to the disability held by applicant (TS p 286 ll 38-45). I agree. 33 At the hearing, expert evidence as to the nature of the applicant's disability was given by consultant psychiatrists Dr Paul Trott and Dr Alston Unwin. There was no dispute as to the expertise of either Dr Trott or Dr Unwin. 34 The evidence was that the applicant's disability was either: (a) a personality disorder of the mixed type. This was the diagnosis of Dr Trott at p 6 of his report dated 25 February 2005 (attached to Dr Trott's affidavit sworn 20 December 2005). Both affidavit and oral evidence of Dr Trott were called by the applicant (b) alternatively, schizo-typal personality disorder. This was the diagnosis of Dr Unwin on p 8 of his report dated 11 January 2006 (attached to Dr Unwin's affidavit sworn 20 June 2006). Both affidavit and oral evidence of Dr Unwin were called by the respondent. 35 In providing their expert opinions as to the personality disorder suffered by the applicant, Dr Trott and Dr Unwin referred to the Diagnostic and Statistical Manual of Mental Disorders (4th ed text revision, American Psychiatric Association Washington, 2000) ("DSM-IV"), as a reference providing authoritative definition of personality orders. General diagnostic criteria for a personality disorder are there defined as: a. an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual's culture. This pattern is manifested in two (or more) of the following areas: (1) cognition (ie ways of perceiving and interpreting self, other people, and events) (2) affectivity (ie the range, intensity, lability and appropriateness of emotional response) (3) interpersonal functioning (4) impulse control b. the enduring pattern is inflexible and pervasive across a broad range of personal and social situations c. the enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning d. the pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood e. the enduring pattern is not better accounted for as a manifestation or consequence of another mental disorder f. the enduring pattern is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition(eg head trauma). 36 A personality disorder as defined by DSM-IV, and as diagnosed by each expert, clearly satisfies the definition of "disability" within s 4(1)(g) DD Act . Dr Trott


case_text: This view is consistent with the decision of Raphael FM in Sheehan v Tin Can Bay Country Club [2002] FMCA 95 , and to that extent I disagree with Mr Murdoch's submission that that case was incorrectly decided. 94 Further, I accept the submissions of the applicant and the Commissioner that there is no pre-requisite as to the type of animals that can be assistance animals for the purposes of s 9(1)(f). I do not read any limitation to the terms of s 9(1)(f) from paras (d) and (e) notwithstanding that those paragraphs were limited to dogs. Further, while I accept the evidence of Ms Sara Walker of Assistance Dogs Australia that Labradors and Golden Retrievers are trained as assistance dogs because of the social acceptability of the breeds and their extremely good nature, and that it is very uncommon for other breeds of dogs to be trained as assistance dogs (affidavit of Sara Walker sworn 9 August 2006 paras 7-8), there is no limitation in the Act as to the types of dogs which can be assistance animals. 95 The broad terms of s 9(1)(f) DD Act can be contrasted with, for example, the Guide Dogs Act 1972 (Qld) which defines "guide dog" for the purposes of that statute in the following terms: • "guide dog" means a dog trained at an approved institution and used as a guide by a blind person or as an aid by a deaf person (s 3 Guide Dogs Act ) • "approved institution" is defined by s 3 Guide Dogs Act to mean an institution that: (a) trains dogs as guides for blind persons or aids for deaf persons; and (b) is declared under a regulation to be an approved institution for this Act. • an "approved institution" for the purposes of s 3 Guide Dogs Act is defined by the Guide Dogs Regulations 1997 (Qld) as: • Guide Dog Association of New South Wales and ACT, • Guide Dogs for the Blind Association of Queensland, • Lions Hearing Dogs Incorporated, • Royal Guide Dogs Associations of Australia, • The Guide Dog Owners' and Friends' Association, and • institutions established outside Australia that are members of The International Federation of Guide Dog Schools for the Blind.


case_text: The concept of "requirement or condition" within the meaning of s 6 or its State equivalents has been considered in a number of cases. Relevant principles include: • it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled" the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 ; (2002) 123 FCR 561 at 577, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81] • whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia , use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394 per, Sackville and Stone JJ in Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577 • a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360, Clarke 138 FCR at 143 • the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143 • the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361, Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361: "...it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands". • the expression "requirement or condition" should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394, Clarke 138 FCR at 143. 141 Similarly in Sluggett [2002] FCA 987 ; 123 FCR 561 the nature of the complaint of the applicant, who suffered a disability as a result of childhood polio, in relation to long walks, many stairs, heavy doors, difficult stairways, open walk areas, crowded stairs, the distances between lifts, and the sometimes limited access to lifts at Flinders University, was such that the conduct was alleged to be unlawful in relation to the means of access to the premises pursuant to s 23(1)(c). 142 As I found earlier in this judgment, the respondent had a policy that persons entering its premises not do so accompanied by an animal unless the animal was a guide dog or a hearing dog or unless the animal had been assessed by the respondent as having training and hygiene standards acceptable to the respondent. I have found that the respondent discriminated against the applicant within the meaning of s 6 and s 9(1)(f). Further, as was specifically acknowledged by the respondent in its written submissions (written submissions of the respondent filed 5 September 2006 para 5.11), the respondent refused to allow the applicant with his dogs access to its premises at Cairns Base Hospital on 16 November 2004, or at Smithfield Community Health Centre on 19 November 2004, 24 February 2005, 28 February 2005 and 3 March 2005. 143 On the facts of this case, the respondent has discriminated against the applicant on the ground of his disability by refusing to allow him access to its premises, which conduct is unlawful pursuant to s 23(1)(a). As the respondent noted in written submissions, once management of Cairns Base Hospital had considered the matter after 16 November 2004 it refused to allow the applicant access because it considered that his dogs were ill-behaved, ill-controlled and that there was inadequate evidence of proper assistance dog training (written submissions of the respondent filed 5 September 2006 para 5.11). 150 Finally, I note the very limited defence (or ground of exculpation as so termed by Madgwick J in Cooper [1999] FCA 180 ; 93 FCR 481 and Drummond J in Sluggett [2002] FCA 987 ; 123 FCR 561) in s 23(2) available to a respondent who has breached s 23(1). It is curious that s 23(2) is so narrowly drafted, in comparison for example with the much broader provision in s 24(2) in relation to conduct in breach of s 24(1). However the form in which s 23(2) is drafted is matter for Parliament, not the Court, and does not in my view limit the manner in which s 23(1) should be interpreted. The defence of the respondent as pleaded in relation to unjustifiable hardship was not referable to the design or construction of its premises as contemplated by s 23(2) , and accordingly is of no relevance in the context of s 23. 157 A number of general principles have developed in relation to the concept of "unjustifiable hardship" within the terms of the DD Act . These principles include the following: • the issue whether the alleged discriminator is potentially subject to unjustifiable hardship arises only once the applicant establishes that the alleged discriminator has engaged in unlawful conduct: Cooper 93 FCR at 491-492, Sluggett 123 FCR at 568, Daglian [2003] FCA at [113]-[114] • the respondent bears the onus of showing unjustifiable hardship within the meaning of s 24(2): Cooper 93 FCR at 492, Sluggett 123 FCR at 568 • the concept of "unjustifiable" hardship suggests that some hardship is justifiable, and requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors: Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658 ; (2000) 100 FCR 306 at [48] .


case_text: Prior to closing submissions, Mr O'Gorman for the applicant stated he no longer pressed the applicant's direct discrimination claim under s 5 DD Act (TS p 285 ll 29-31). I note that it has been held in numerous cases that findings of direct and indirect discrimination are mutually exclusive ( Australian Medical Council v Wilson (1996) 68 FCR 46, Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349), and that the applicant in this case chose to pursue an indirect discrimination claim under s 6 DD Act , as well as a separate claim pursuant to s 9. 53 The concept of "requirement or condition" within the meaning of s 6 or its State equivalents has been considered in a number of cases. Relevant principles include: • it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled" the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 ; (2002) 123 FCR 561 at 577, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81] • whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia , use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394 per, Sackville and Stone JJ in Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577 • a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360, Clarke 138 FCR at 143 • the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143 • the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361, Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361: "...it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands". • the expression "requirement or condition" should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394, Clarke 138 FCR at 143. 70 Principles relevant to this question were summarised by Sackville and Stone JJ in Clarke 138 FCR at 145-146 as follows: "i. The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111; ii. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83; iii. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and iv. The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395... However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable..."


case_outcome: followed

case_text: In relation to the language ability of the appellant his Honour found: • Reference to the IELTS test in the Tribunal's reasons for decision merely indicated the Tribunal's awareness of the test as an alternative form of assessment, and inferences open upon the presentation of such evidence. In any event the Tribunal noted there was no such evidence and that the Tribunal only had available before it the appellant's evidence comprising his Diplomas. • The Tribunal had carefully considered the evidence provided by the appellant in relation to his Diplomas. It noted that written assignments were not produced, but assessment was undertaken by "tick a box" multiple-choice assessment. The appellant was not required to attend class and listen to lectures conducted in English. • Classes given as part of the course of study for the Diplomas were by correspondence, although the appellant had attended some classes where he communicated with tutors in Vietnamese and English. • The fact that the appellant was dissatisfied with the Tribunal's determinations on questions of fact does not amount to a jurisdictional error or error of law and it is not appropriate for a court to review the merits of a Tribunal's determination ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 162). 12 In relation to valuation of assets of the appellant his Honour found: • Section 359A of the Act does not require the thought processes, subjective appraisals or determinations of the Tribunal to be provided to the appellant for comment. • Facts or findings as to credibility are the function of the primary decision-maker. • Although the issue of pre-and post-application values of property was determined by the Tribunal arbitrarily, the issue was decided in favour of the appellant. This is ultimately a question of fact for the Tribunal. 13 Accordingly his Honour dismissed the application. 14 The appellant filed a Notice of Appeal on 6 December 2007. During the course of oral submissions on 21 May 2008 before me, an issue of contention arose as to whether the Tribunal had made findings of fact unsupported by evidence in relation to the assessment of the appellant's English language ability, whether the appellant had attended his Diploma courses part-time, and whether the courses were conducted in English or Vietnamese (TS 12 21 May 2008). The appellant had not raised these issues before the Federal Magistrate and did not include such grounds in the Notice of Appeal filed 6 December 2007. Once these issues were raised in oral submissions, however, the appellant foreshadowed a desire to seek leave to file an Amended Notice of Appeal so as to include further grounds. I adjourned the matter to allow the appellant time to prepare an Amended Notice of Appeal and to allow both parties the opportunity to prepare amended submissions in the event that leave to file the Amended Notice of Appeal was granted. 15 On 24 June 2008 the matter returned for hearing and the appellant applied for leave to file an Amended Notice of Appeal. After hearing from both parties: • I was not persuaded that the appellant's new legal arguments presented in the Amended Notice of Appeal had a reasonable prospect of success; and • I considered that no sufficient explanation by the appellant was offered as to why the new ground of appeal was not raised before the Federal Magistrate. 16 However I also considered that allowing the appellant to amend his Notice of Appeal would cause limited (if any) prejudice to the respondent (indeed, Counsel for the first respondent stated at this hearing that she was in a position to answer the new ground of appeal). 17 On balance, I decided it was in the interest of justice that the appellant be granted leave to file his Amended Notice of Appeal.


case_text: The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. An error in the factual findings of the Tribunal, or the weighing of facts by the Tribunal, is not a jurisdictional error. 24 In this case there is considerable overlap between the appellant's grounds of appeal and submissions in relation to those grounds of appeal. After considering the grounds of appeal and the submissions of both parties I have formed the view that the appellant's grounds of appeal are without substance for the following reasons: 25 Section 359A specifically provides for procedural fairness in the framework of the Act as follows: 359A Information and invitation given in writing by Tribunal (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. ... (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information.


case_text: The Minister was represented by Ms Wheatley of Counsel. A summary of her submissions is as follows: Ground 1 • Pursuant to s 359A of the Act, the Tribunal need only give the appellant particulars of information it considers would be the reason or part of the reason for affirming the decision. This does not extend to "information" encompassing the Tribunal's thought processes, determination, subjective appraisals, or relate to the existence of doubts, inconsistencies or absence of evidence ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26). • The Tribunal considered the information given by the appellant in relation to property valuations and decided not to place any weight on it. Such an approach is open to the Tribunal ( Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 at [55] ). • The appellant was invited by the Tribunal to provide further information supported by documentation in accordance with s 359A(2) of the Act. • The real estate valuations of the appellant were given to the Tribunal for the purposes of the review. Section 359A(4)(b) of the Act specifically excludes information, given for the purposes of the application for review, from the operation of s 359A. Ground 2 • The Tribunal did consider the appellant's advanced diplomas and also considered the other available evidence before it. The decision the Tribunal made was open to it in light of: o the appellant's reliance on an interpreter at the hearing; o the fact that, when an interpreter was not used, the appellant was hesitant and had difficulty answering questions in English; o the courses of study upon which the appellant relied were conducted by correspondence; o the fact that the appellant communicated with tutors in those courses in English and Vietnamese; and o the fact that the appellant did not claim to have produced any written assignments in English. • In relation to the asset valuations, the Tribunal did consider and take into account the real estate properties and valuations but determined not to place weight on those valuations. The weight to be attributed to such valuations was an issue for the Tribunal ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24). Ground 3 • The Tribunal did not misunderstand the questions it was to ask itself; rather it identified the correct issues and considered all of the evidence before it. • The PAM policy guidelines as to functional ability in English and "better than functional ability" provide that either educational qualifications or the IELTS test results may be regarded as sufficient in deciding whether the appellant has better than functional English. The Tribunal merely adverted to the IELTS test as an alternative assessment. Ground 4 • The findings of the Tribunal in relation to the part-time study and mode of delivery were open to the Tribunal. • A finding that the appellant undertook part-time study was open to the Tribunal upon the evidence. The facts before the Tribunal were that the appellant studied by correspondence, completing 12 subjects over two years while undertaking full-time work (seven days a week). • A finding that the appellant communicated with his tutors in both English and Vietnamese was open to the Tribunal on the evidence. The appellant at the Tribunal hearing stated that his tutors spoke with him in both languages and assessment was mostly by way of "tick the box" answers. 26 "Information" in s 359A of the Act has only a limited scope (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [22] ). Considering a similar legislative provision in SZBYR [2007] HCA 26 , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [18] said that "information": does not encompass the Tribunal's subjective appraisals, thought processes or determinations...nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. 27 The appellant's first ground of appeal related to the Tribunal's consideration of real estate valuations provided by the appellant. However in its statement of decision and reasons it is clear that the Tribunal carefully considered all the evidence relating to the assets claimed by the appellant. In upholding the delegate's decision to refuse the grant of a visa to the appellant, the Tribunal noted, inter alia : • the fact that the property valuations provided by the appellant were not supported by evidence; and • that the valuations currently provided were inconsistent with the valuations provided in 2003. 28 The appellant in ground 1 does not identify the information upon which it is said the Tribunal should have invited comment. After consideration of the evidence, the Tribunal was of the view that little weight should be given to the valuations provided by the appellant. Inconsistencies and disbelief of the appellant's evidence are not, for the purposes of s 359A of the Act, "information" which must be provided by the Tribunal to the appellant.


case_outcome: related

case_text: As far as the second ground of appeal relates to real estate valuations, the learned Federal Magistrate found in Tran [2007] FMCA 1929 at [33] that it was clear from the reasons of the Tribunal that it did take into account the property valuations provided by the appellant. The weight given to those valuations however is an issue for the Tribunal ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24). 38 The appellant raised issue with the Tribunal's decision relating to the value of the property at 93-95 Nguyen Cu Trinh Street. It appears from the evidence that the appellant held the property at 95 Nguyen Cu Trinh Street at the time of the application, but that the adjoining building No 93 was acquired after the application. The appellant's evidence was that the property at No 95 was worth $200,000 but that the combined worth of the two properties was $1,207,242. The Federal Magistrate noted that the Tribunal had divided the then value of 93-95 Nguyen Cu Trinh Street in half for the purposes of its consideration of the appellant's case. His Honour found that, while the value attributed to the properties by the Tribunal for the purposes of the application may have been decided arbitrarily, the Tribunal clearly decided the case in favour of the appellant. This is because No 93 had been acquired after the commencement of the application accordingly the Tribunal strictly did not need to take the value of that property into account. The Federal Magistrate found that the decision of the Tribunal in relation to these properties had no effect on the decision adverse to the appellant ( Tran [2007] FMCA 1929 at [33]). 41 This ground of appeal overlaps with the second ground in relation to the language ability of the appellant. Burnett FM said at [14]: However, the Applicant's interpretation of the Tribunal's decision on this point is in my view incorrect. It is clear from the Tribunal's decision that its reference to the IELTS test was merely to indicate its awareness of an alternative form of assessment available to it and the inferences open on the presentation of evidence of that kind. In the result however the Tribunal only had available before it the Applicant's evidence comprising the advanced diplomas. (Tran v Minister for Immigration & Anor [2007] FMCA 1929) 42 In my view, it cannot be inferred from the fact that the Tribunal mentioned the absence of an IELTS test that the Tribunal had concluded the appellant had only "functional English" because of the absence of an IELTS test. The Tribunal merely noted that the appellant did not present results of an IELTS test. The Tribunal mentioned the IELTS test because it is a consideration for which there is provision under the policy. 43 This ground of appeal is not substantiated.


case_outcome: distinguished

case_text: At the hearing the appellant was represented by Mr Nguyen of Counsel. A summary of the appellant's submissions are as follows: Ground 1 • By not giving the appellant the opportunity to respond to adverse findings in relation to property valuations, the Tribunal failed to comply with the requirements in s 359A(1)(c) of the Act. • By not placing due weight on the appellant's assets, the overall points score was affected which lead to the Tribunal affirming the decision of the delegate. Ground 2 • The Tribunal failed to properly consider the evidence as to the appellant's English ability. The Tribunal accepted that the appellant achieved two Advanced Diplomas but did not award the appellant 30 points for achieving "better than functional English" as provided for in policy. The fact that the appellant exercised his right to use an interpreter at the hearing was an irrelevant consideration. • The real estate valuations of the appellant were given no weight by the Tribunal and not taken into account. The Tribunal divided the value of the 93-95 Nguyen Cu Trinh Street property in half without giving any reasons. If the property were not divided in half, the appellant would have received 15 points under the Schedule to the Act. The appellant was not given the opportunity to provide further evidence or comment on the real estate valuations. The decision of the Tribunal is contrary to the authority in Wyse v Minister for Immigration and Citizenship [2006] FMCA 1362. Ground 3 • The Tribunal failed to recognise that the two Diplomas of the appellant were evidence of "better than functional English". By commenting on the appellant's failure to take an IELTS test, the Tribunal made a preference as to the type of evidence it would accept and imposed a requirement that an IELTS test be completed. Ground 4 • The Tribunal made an error of fact that led it to misapply the law. The Tribunal concluded the appellant completed Advanced Diplomas on a part-time basis and the instructions were in Vietnamese. In fact the courses were completed on a full-time basis and instructions were in English. The factual errors led the Tribunal to conclude the appellant had "functional English". 39 Further, I agree with Ms Wheatley that the principles articulated in Wyse [2006] FMCA 1362 have no application in the context of these proceedings, as that case involved a different type of visa, a different policy and different requirements. 40 I do not consider this ground of appeal substantiated.


case_text: difficulty confronting Benson Communications Pty Limited in applying for an order setting aside the statutory demand, is that the nature of its case for setting aside the demand as it has now emerged was in no way disclosed in the affidavit that was filed within the 21-day period. The authorities establish that while supplementary affidavit material may be filed and served outside that period, the further affidavit or affidavits must be limited to filling out or supporting a ground that was set out in an affidavit or affidavits filed within that period. For this proposition, many cases could be referred to, including Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 , Energy Equity Corporation Ltd v Sinedie Pty Ltd (2001) 166 FLR 179 ; [2001] WASCA 419 ; Jian Xing Knitting Factory v Scasa Pty Ltd [2004] SASC 152 at [18] ; Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) (2004) 185 FLR 130 ; [2004] NSWSC 527 ; Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3 ; (2005) 157 ACTR 22 ; Tatlers.com.au Pty Ltd v Davis (2007) 213 FLR 109 ; [2007] NSWSC 835 at [19] , [28], [29]. Mr Evans, counsel for Benson Communications Pty Limited, has referred to Tatlers.com.au Pty Ltd v Davis (2007) 213 FLR 109 ; [2007] NSWSC 835 at [19] . In that case, White J in the Supreme Court of New South Wales rejected a contention that the purpose of s 459G was to enable the defendant to understand, to test and to respond to the material on which the plaintiff relies. His Honour considered that that aspect of case management and natural justice could be met, even though the plaintiff company might be permitted to file and serve further affidavits outside the 21 day period. White J observed that all that s 459G required was that the application and supporting affidavit be filed and served within the 21 day period, and that the question of how the application was dealt with subsequently was a matter for the ordinary pre-trial procedures directed to ensuring a fair hearing. However, his Honour also acknowledged as follows (at [19]): The courts have implied from the requirement that there be a supporting affidavit that the affidavit filed in support of the application must raise the grounds to be relied upon to set aside the demand, and have further implied that the plaintiff is restricted to the grounds so raised. White J accepted that the stringency of the 21-day period reflects the legislative purpose of the quick resolution of the issue of solvency and the determination of whether a company should be wound up without the interposition of disputes about debts, unless they are raised promptly. I do not think that anything said by White J detracts from the line of authority that insists that the ground relied on for the setting aside of the statutory demand be identified in the affidavit or affidavits supporting the application that is or are filed within the 21-day period. The most that can be said of Mr Benson's affidavit is that in para 6 he accepts that there was a change of trustee. One might reason along the lines that by some unidentified mechanism his claim is that the identity of the trustee from time to time does not matter. Apparently, however, it is accepted that the identity of the trustee does matter. Indeed, the case to be put in support of the appeal is that if the Court of Appeal will allow evidence of the trust deed and Deed of Variation to be admitted, it will find that the change of trustee was invalid. This, however, is in no way remotely suggested in Mr Benson's affidavit. Another approach might be to say that since the affidavit was filed in support of an application to set aside and refers to an offsetting claim in excess of the judgment debt of $446,314.14, one should read the affidavit as somehow proposing as the "other reason" referred to in s 459J(1)(b) , that Mr Carroll brought about the change of trustee in a fraudulent or otherwise sinister manner. However, this would be mere speculation and is not suggested in the affidavit or in submissions.


case_text: The Federal Magistrate approached his task mindful of the injunction against excessive zealotry in finding error in the language and expression of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 277 and 291. Having referred to the Tribunal's inconsistencies comment, his Honour stated that the Tribunal's reasons clearly indicated that it was aware of the claims made in the visa application statement and that it had sought to address and test the claims in that statement in its questioning of the appellant at the hearing. Indeed the Federal Magistrate went so far (in [31] of his reasons) to indicate that in his view "the written statement provided the foundation for the Tribunal's questioning of the applicant throughout the hearing". Further, the reasons expressly acknowledged that it had considered the factual claims of the statement.


case_text: In relation to the lack of any discussion in the Tribunal's reasons of the matters particularised from the visa application statement, his Honour considered that the Tribunal's conclusion refusing to accept that the appellant "was ever a member of a Marxist party" rendered reference to those statements unnecessary. It was implicit in the Tribunal that they had been dealt with and rejected in the above conclusion which embodied a finding "of greater generality": Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. 17 In para 29 of its reasons, his Honour made the following specific observation about one particular finding of the Tribunal: "Moreover, I am inclined to read the Tribunal's reference to 'I do not accept that the applicant was a member, a supporter or even had a passing interest in any of the Marxist parties operating in Kerala at the time the applicant was at school' , in combination with the Tribunal's reference to the applicant's lack of knowledge of the Marxist or Communist Party in Kerala, as an oblique rejection of the applicant's original suggestion that he had been attracted by Marxist ideology. " (Emphasis added) 18 I simply note in passing that the reference to the appellant being attracted by Marxist ideology was made in the statement accompanying the visa application. The Federal Magistrate concluded that: "As a matter of practicality, it is difficult to see how the Tribunal could have decided the refugee claims of the present applicant, other than by starting with his written statement, testing him at a hearing on its contents, and then assessing the responses he gave to the Tribunal's questions. In my opinion, this is how the Tribunal has decided this case." 19 I would again emphasise that the ground of application before the Federal Magistrate was focused on a failure to take into account particulars of the applicant's claim. Unsurprisingly then the Federal Magistrate's findings were directed at showing that account had been taken of them. 20 The application for judicial review was rejected. 21 Because of the different course the appellant now seeks to take in this appeal there are two further matters, both noted by the Federal Magistrate, to which I should refer. The first is that, as indicated in the Tribunal's reasons, it put to the appellant at the hearing that it "had serious difficulty with his account of events for reasons already discussed with him during the hearing". The second is that at the end of the hearing the Tribunal asked the appellant if there "is anything you want to tell me about your claims you don't think we've covered". The appellant added nothing of present relevance. 22 The unamended notice of appeal raised three grounds. The first two grounds challenged his Honour's findings that the Tribunal did take account of the claims made in the visa application statement. The third ground asserted that "his Honour erred in not finding that the Refugee Review Tribunal failed to comply with s 425A [sic] of the Migration Act 1958 in failing to inform the appellant that there were inconsistencies between his written claims and his oral evidence." As I have indicated, the first two grounds have been abandoned but leave is being sought to modify the third ground. Before dealing with that matter I should comment briefly on why in any event I consider that the Tribunal's alleged failure to take account of the claims in the visa application statement was unarguable. This provides some background to my view of the prospects of the proposed amendment. 23 The first substantive issue the Tribunal addressed in making its findings was the appellant's credibility. This it decided adversely to the appellant on the basis of the evidence given at the hearing. The Tribunal's questioning of the appellant at that time obviously was informed, inter alia, by the statement accompanying the original visa application, as his Honour observed. However, the credibility finding made was not, on its face, based at all on inconsistencies between the oral evidence and the statement. What the appellant said on the day sufficed for that purpose. When regard was had to what the appellant had said then and to the reasons given for rejecting his oral evidence, the bases of his claims to refugee status, whether made in the statement or at the hearing, fell away. This was not because of any inconsistencies between the two. It was because, at the hearing, he authored his own failure. The Tribunal clearly was aware of, and considered, the claims in the statement. There is no reason to doubt its truthfulness in this regard. Having heard the appellant giving evidence and having discussed his claims with him, it was quite proper for the Tribunal to observe that the claims made at hearing represented the appellant's claims for refugee status. These, at the close of the hearing, were the claims being prosecuted by the appellant. The Tribunal could disregard earlier inconsistent claims. And, as it indicated, it needed to have no regard to the inconsistencies themselves as part of its reason for affirming the delegate's decision. 24 Moreover, I should add that the Tribunal in any event had no need to make any specific reference to, or findings on the earlier claims. Its rejection of the claims put at the hearing was so comprehensive so all encompassing as to obviate any need for such particular reference or findings. They fell necessarily with the findings made, even if they were inconsistent with, or different from, the claims made at the hearing. I am satisfied the Tribunal was aware of this: cf Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. 25 I refer to these matters by way of background to what is now sought to be raised in the proposed amended notice of appeal. It is to be alleged that the Tribunal not only took into account the claims that were made in the visa application statement, it also took into account the inconsistencies between that statement and the oral evidence without drawing these to the attention of the appellant and giving him the opportunity to consider and comment upon them. This failure is said to constitute a failure to accord procedural fairness and/or a failure to comply with s 425 of the Migration Act . 26 The first and most obvious point to make about the proposed new ground of appeal is that this matter was not raised in the court below. As was said by his Honour in his reasons "no issue is taken in the grounds of review in this Court to the fairness of the Tribunal's proceedings. It is not contended the applicant was denied the opportunity required by s 425 of the Migration Act , nor that he was not alerted to the issues that arose in the review before the Tribunal."


case_text: As is well understood, even though this proposed new ground was not raised before the Federal Magistrate, the Court may allow such a ground to be agitated on an appeal if satisfied that it is expedient in the interests of justice to allow that course to be taken: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168. Whether or not leave should be granted in this case will turn largely on the prospects of success of the proposed amended ground. For this reason, as I indicated at the hearing, I have heard argument both on the substantive ground and on the application to amend.


case_text: The manner in which the appellant's counsel has argued the matter has been somewhat unusual. He has conceded that in confirming the details of his protection visa application at the Tribunal hearing, the appellant thereby gave the information in the visa application statement "for the purpose of the application" to the Tribunal: cf s 424A(3)(b). It is not for me to consider whether this concession needed to be, or was properly, made: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [29] ff. It was then said that the inconsistencies between the statement and the oral evidence were not required to be notified under s 424A of the Migration Act either because of s 424A(3)(b) or, in my view, more properly because inconsistencies in evidence given by an applicant are not "information" for the purposes of s 424A: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] .


case_text: The manner in which the appellant's counsel has argued the matter has been somewhat unusual. He has conceded that in confirming the details of his protection visa application at the Tribunal hearing, the appellant thereby gave the information in the visa application statement "for the purpose of the application" to the Tribunal: cf s 424A(3)(b). It is not for me to consider whether this concession needed to be, or was properly, made: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [29] ff. It was then said that the inconsistencies between the statement and the oral evidence were not required to be notified under s 424A of the Migration Act either because of s 424A(3)(b) or, in my view, more properly because inconsistencies in evidence given by an applicant are not "information" for the purposes of s 424A: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] . 34 It is difficult to see how s 424A has any significance in the resolution of the issue save perhaps as manifesting a legislative intent that the natural justice hearing rule will not apply to information provided by an applicant for the purposes of an application to the Tribunal. Given that the section imposes, and then delimits, the scope of a statutory obligation to provide information having prospectively a particular character (i.e. "would be the reason" etc), the fact of there being inconsistencies is not "information" for the purposes of the provision. As was indicated by the joint judgment of five members of the High Court in SZBYR at [18]: "... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute 'information'. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word 'information' [(2004) 206 ALR 471 at 476-477]: 'does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc'. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant 'information' was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself."


case_text: The next step in the appellant's proposed challenge was premised upon what are said to be findings made by his Honour that the Tribunal did take account of inconsistencies between his visa application statement and his oral evidence, notwithstanding it disclaimed so doing. I will return to these findings below. What is contended is that because the Tribunal relied upon those inconsistencies in reaching its decision it was, as I noted above, obliged to put the inconsistencies to the appellant either as a matter of procedural fairness or because, in the circumstances it was required to do so by s 425 of the Act as explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [33] - [36] . 30 By way of background to my consideration of that contention, I should refer to aspects of the provisions of s 422B , s 424A and s 425. Section 422B(1) of the Act provided at the relevant time: " Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matter it deals with." 31 Section 424A provided, insofar as presently relevant: " Applicant must be given certain information (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; ... (3) This section does not apply to information: ... (b) that the applicant gave for the purpose of the application." 36 In SZBEL , the High Court commented of s 425 (at [33]-[36]) that: "[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review '. The reference to 'the issues arising in relation to the decision under review' is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language 'arising in relation to the decision under review' is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the minister's delegate), but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons. [35] The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are 'the issues arising in relation to the decision under review'. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. [36] It is also important to recognise that the invitation to an applicant to appear before the tribunal to give evidence and make submissions is an invitation that need not be extended if the tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the tribunal will begin its interview of an applicant who has accepted the tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision."


case_text: If, in the circumstances, the Tribunal was under an obligation to put the inconsistent statements to the appellant for comment, that obligation could only have arisen if, and to the extent that, s 425 of the Act so dictated in the circumstances. It prescribed the opportunity that was to be given in circumstances such as the present to an applicant at a Tribunal hearing by way of "the natural justice hearing rule" beyond what was required by s 424A: cf SZILQ v Minister for Immigration and Citizenship [2007] FCA 942.


case_text: It is, in my view, unsurprising that (i) no issue was raised before the Federal Magistrate as to the fairness of the Tribunal's proceedings, and (ii) it was not contended that the appellant was denied the opportunity required by s 425 or that he was not alerted to the issues that arose in the review. He was clearly put on notice that the Tribunal had difficulties "with his account of events" and the bases of those difficulties were revealed in his answers to the Tribunal's questions. He was given the opportunity to give further evidence "about claims you don't think we've covered". He was alerted to the possibility that he might be disbelieved. In consequence he suffered '[n]o practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [38] ; from the manner in which the review hearing was conducted and his application determined. I do not consider that he can derive any comfort from s 425. 38 Counsel for the appellant stated in submissions that he only became aware of what he perceived to be the natural justice vice in the matter when the learned Federal Magistrate was giving his extempore judgment and was understood to be making references to the Tribunal's having had regard to inconsistent statements. There are two in particular I highlighted earlier in these reasons. It is necessary to refer again to them and to the contexts in which they were made. The first is at [26] of the reasons. Having indicated at [25] that the Tribunal's inconsistencies comment was made with s 424A in mind, his Honour considered that the purpose of the comment was to explain why the Tribunal had not felt it necessary to serve a s 424A notice. His Honour went on to say: "I find confirmation of this understanding of the paragraph in the Tribunal's subsequent reasons, rather than the converse. The first reason given by the Tribunal for rejecting the applicant's credibility was that he was 'unprepared to be tested on the specific details of his claim and found it difficult to fabricate those details because he had no experience to draw upon to give that specific evidence' . This indicates that the Tribunal drew a general conclusion about the content and manner of the applicant's responses to its questioning upon the contents of his original visa statement. The Tribunal then explained specific elements in his responses to questions which it found detracted from his credibility." (Emphasis added.) 39 The respondent Minister does not concede that this amounts to a finding that the Tribunal itself found inconsistency between the statement and the oral evidence. Rather, it says no more than that the statement provided the source, inspiration or prompt for the Tribunal's questioning, but that the general conclusion drawn was based on the content and manner of his responses to its questioning which the Tribunal then enlarged upon. 40 I can only say that I agree completely with the Minister's contention. As his Honour had earlier observed of the inconsistencies comment: "I consider that the paragraph indicates no more than, as is apparent from the Tribunal's subsequent reasoning, that it was able to determine the lack of credibility of the applicant's claims by an assessment of the evidence he gave at the hearing, without a need to rely upon inconsistencies between that evidence and his original visa statement." 41 The second alleged finding of the Federal Magistrate to the effect that the Tribunal had regard to inconsistent statements was no more than a dictum and a speculative one at that. His Honour stated at [29]: "I am inclined to read the Tribunal's reference to 'I do not accept that the applicant was a member, a supporter or even had a passing interest in any of the Marxist parties operating in Kerala at the time the applicant was at school' , in combination with the Tribunal's reference to the applicant's lack of knowledge of the Marxist or Communist Party in Kerala, as an oblique rejection of the applicant's original suggestion that he had been attracted by Marxist ideology [which was made in his visa statement]." (Emphasis added.) 42 Again the Minister denies this is a finding of reliance upon inconsistencies. Rather it is an observation to the effect that the lack of knowledge the appellant displayed at the hearing, belied any claim he may ever have made actually to have had an interest in Marxism. Again I agree with this contention. 43 For my own part I do not consider that the reasons of the Federal Magistrate betray in any event the vice alleged in the proposed ground of appeal. Ex tempore judgments have on occasion to be read with some generosity. They should not be read selectively and with a predisposition adverse to its correctness. 44 As I do not consider that the proposed amended ground of appeal has any reasonable prospect of success, I do not consider it to be in the interests of justice to grant leave to amend the notice of appeal. Accordingly, I will order that (i) leave to amend the notice of appeal be refused and (ii) the appeal be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 13 August 2007 Counsel for the Appellant: Mr R Killalea Solicitor for the Appellant: 3 Selborne Chambers Counsel for the Respondent: Ms S Sirtes Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 1 August 2007 Date of Judgment: 13 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1224.html


case_text: As I have noted, her Honour held that the Tribunal's finding that it was reasonable for the appellant to relocate within India was made independently of the accepted failure to comply with s 424A(1) of the Act. The appellant was specifically asked whether he directed any ground of appeal to the finding on relocation or the consequences of that independent finding in light of the failure to comply with s 424A(1). The only matter that he raised was a question of fact as to the difficulties for him in relocating. Consistent with MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7] ; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZEEU at [233], I see no error in her Honour's approach.


case_title: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965


case_text: The appellant's grounds of appeal before Barnes FM were similar to those raised in this Court. Her Honour methodically addressed the grounds of appeal and found that they were generalised assertions unsupported by evidence. The appellant did not establish jurisdictional error on the part of the Tribunal. The Minister raised a conceded failure to comply with s 424A(1) of the Act. Her Honour, however, did not find that that failure warranted the setting aside of the Tribunal's decision. Her Honour accepted, within the reasoning of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [233] , that there had been an entirely separate basis for the decision, namely that it would be reasonable for the appellant to relocate within India (at [37]). That independent finding provided a basis to uphold the validity of the decision. 11 Federal Magistrate Barnes found that the factual basis for the denial of procedural fairness as in Muin was not established in the circumstances of this case (at [12]). In particular, her Honour noted that there was no statement of agreed facts or, indeed, any evidence before her Honour to establish a factual basis akin to that made out in Muin . Her Honour's approach reveals no error. 12 The Minister is required to notify the applicant for a protection visa of her decision to grant or refuse the visa in accordance with s 66 of the Act. The allegation that there had been a failure to comply with subss 66(1) and 66(2) of the Act was not raised before the Federal Magistrate and the Minister submits that it ought not to be raised for the first time on appeal. In any event, as noted by counsel for the Minister, pursuant to s 66(4) of the Act any failure to give notification of a decision does not affect the validity of Minister's decision. 13 I note further that there is no evidence that the appellant did not receive the Minister's decision. There is evidence that the Minister's decision was sent to the appellant. Further, the application to the Tribunal was filed within time (s 412(1)(b) of the Act). This indicates that the appellant did indeed receive the decision and that the application to the Tribunal was validly made. It follows that the Tribunal had jurisdiction to conduct its review and any complaint in respect of s 66 of the Act cannot be sustained. 14 It is not clear what relevant evidence the appellant says should have been taken into account. The Tribunal in its reasons observed that the appellant had advised the Department that he would provide supporting documentation relating to his claims but did not do so. No supporting material was submitted to the Tribunal. I specifically raised this matter with the appellant. He confirmed that he had not sent any further written evidence to the Tribunal. 21 As I have noted, her Honour held that the Tribunal's finding that it was reasonable for the appellant to relocate within India was made independently of the accepted failure to comply with s 424A(1) of the Act. The appellant was specifically asked whether he directed any ground of appeal to the finding on relocation or the consequences of that independent finding in light of the failure to comply with s 424A(1). The only matter that he raised was a question of fact as to the difficulties for him in relocating. Consistent with MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7] ; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZEEU at [233], I see no error in her Honour's approach.


case_outcome: referred to

case_text: claim for public interest immunity protects from disclosure documents of which the disclosure would be prejudicial or injurious to the public interest: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 48-9. Consequently, it is necessary to balance two competing aspects of the public interest, namely the effect upon the administration of justice if the evidence is withheld on the one hand, and the effect upon the wider public interest if the documents are made available for inspection: see generally Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404 at 412. It is inappropriate, in my view, simply to take the view that because a document relates to an investigation of criminal conduct, its disclosure would necessarily have a significant adverse consequence to that investigation and so should not be disclosed. It is necessary to consider the particular circumstances of the proceedings and of the documents which are sought to be investigated. It is also necessary to bear in mind, in a matter such as the present, that there is no real public interest in not exposing any illegal conduct on the part of the authorities. That is not to suggest that such conduct is or may be established in this matter, but that is the allegation. I have also borne in mind the intention of the Parliament as evidenced in the ACC Act, in particular ss 29 and 30 and 51(3).


case_title: Alister v The Queen [1983] HCA 45 ; (1983) 154 CLR 404


case_text: in time, a Full Court had observed in Beadle v Director-General of Social Security [1984] AATA 176 ; (1985) 60 ALR 225 at 228 that: We do not think it is possible to lay down precise limits or precise rules ... The phrase, although lacking precision, is sufficiently understood not to require judicial gloss. I refrain, in this case, from adding any judicial gloss in respect of the term "special circumstances". It seems to me that that which has earlier fallen from courts as to what those words carry with them is more than sufficient. When one reads the reasons of the learned Federal Magistrate insofar as they address the subject of the special circumstances aspect of the controversy which fell to the AAT to resolve one is left, in my opinion, with two impressions. Firstly, that the learned Federal Magistrate correctly apprehended the nature of the special circumstances test which fell for the AAT to apply, and secondly, that the learned Federal Magistrate did appreciate that that test fell for application in the circumstances of Mr Doelle's particular case. In particular, at para 13 of the reasons for judgment of the Federal Magistrates Court, one finds the following: The facts were considered against the established test with the tribunal concluding, at para 20: "... there is no or insufficient probative evidence that the applicant's circumstance are somehow unusual or exceptional such that there are "special circumstances" enough to warrant the debt being waived." One then finds the following observation made by the learned Federal Magistrate: Despite the contention in his notice of appeal that the AAT incorrectly interpreted and/or applied the meaning of the expression "special circumstances" in section 1184K of the SS Act no particulars were advanced in support of that contention. The Tribunal correctly informed itself of the relevant test and its determination was open to it on the facts of the case. Ultimately the conclusion drawn by the AAT was one of fact.


case_text: the nature of that challenge, it is helpful to reflect upon observations which have been made in earlier judgments as to the nature of a special circumstances test. In Boscolo v Secretary, Department of Social Security [1999] FCA 106 ; (1999) 90 FCR 531 at 535, French J, as his Honour then was, observed: It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it is not likely to be enlivened... If helpful to speak in terms of its meaning almost all of it comes from context. I note that the learned Federal Magistrate made particular reference, at para 10 of his reasons for judgment, to Boscolo's case.


case_text: this regard, it is helpful to recall observations made, now long ago, by Brennan J, as his Honour then was, in Waterford v Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54 at 77, which statement was referred to with approval in this Court in Commonwealth Banking Corporation v Percival [1988] FCA 240 ; (1988) 20 FCR 176: The error of law which an appellant must rely on to succeed must arise in the facts as the AAT has found them to be, or it must vitiate the findings made, or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore, an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.


case_text: in Federal Commissioner of Taxation v Elton (1990) ATC 4078, Davies J observed that although he might have come to a different view on the facts had he been called upon to make the decision, no error of law was demonstrated. His Honour there, as others have frequently done since in respect of appeals under s 44 , was demonstrating a principle of restraint in terms of the jurisdiction that is consigned to the court in appeals from the AAT. It seems to me that the learned Federal Magistrate did just that in disposing with this aspect of the challenge which Mr Doelle made to the AAT's decision. Thus, those grounds of appeal which seek to challenge the way in which the Federal Magistrates Court dealt with the findings of fact made by the AAT must fail. It is convenient, having regard to the reference to Waterford's case, to make brief reference to an endeavour which Mr Doelle made to supplement the record of the proceedings by proffering a document which I marked for identification as exhibit A. Mr Doelle did not give sworn evidence that this document comprised part of the record before the AAT, and, in a statement which he made from the bar table, was unable to confirm one way or the other whether it was, indeed, part of the material before the AAT. The Commonwealth's position was that it did not comprise part of the material before the AAT. It certainly did not form part of the material which was transmitted to the Court by the AAT, as required, in respect of an appeal under s 44.


case_text: Groth v Secretary, Department of Social Security [1995] FCA 1708 ; (1995) 40 ALD 541 at 545, Kiefel J observed that: The words require something which distinguishes [a person's] case from others, to take it out of the usual or ordinary case.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: Jess v Scott (1986) 12 FCR 187 at 195, albeit in a different context but, nonetheless, by reference to the term "special circumstances," a Full Court observed of that term that: [It is] an elastic test, suitable for application across a range of situations ... It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify departure in the particular circumstances from the ordinary rule.


case_text: similar view of the meaning of a term such as "special circumstances" is to be found in the judgment of the Full Court in Minister for Community Services and Health v Chi Keong Thoo (1988) 78 ALR 307 at 324.


case_text: regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 , and subsequent decisions of Full Courts of this Court, there can be no doubt that an appeal to this Court from the Federal Magistrates Court is an appeal by way of rehearing, not an appeal stricto sensu . That said, the nature of the appellate jurisdiction is necessarily influenced by the nature of the proceeding which is the subject of appeal. In this instance, that proceeding was an appeal on a question of law. It seems to me to follow, having regard to the observation made by Brennan J in Waterford's case, that it would be impermissible, on an appeal from the Federal Magistrates Court which had entertained an appeal under s 44 of the Administrative Appeals Tribunal Act , to receive, by way of an endeavour to supplement the record, material which could only go to a challenge to the factual conclusion reached by the AAT. For those reasons, I have not had regard to exhibit A in the disposition of the appeal. I turn, then, to the question which necessarily confronted the learned Federal Magistrate, in light of the conclusion which he had reached concerning the ability, reasonably, of the AAT to make the finding of fact that it did in relation to the composition of the settlement moneys. His Honour correctly apprehended that s 1184K of the Social Security Act makes provision for the exercise of discretion in relation to the imposition of the lump sum preclusion period refund obligations, where "special circumstances" exist. It seems to me, also, that his Honour correctly apprehended the case law, such as it is, as to the meaning of that term "special circumstances." One finds in para 8 and para 10 of the learned Federal Magistrate's reasons reference to pertinent authorities. His Honour recites, at para 9 of his reasons for judgment, that no issue was taken with the AAT's identification of the appropriate test. Before me, Mr Doelle was concerned that the learned Federal Magistrate had not dealt with the special circumstances test correctly, in that, so he submitted, the court below had failed to appreciate that the ramification of the special circumstances test was that each case is different. In other words, the nature of the challenge seemed to be that the court below and, for that matter, the AAT, had failed to appreciate that it was at the very essence of the special circumstances test that it required the consideration of its application in the circumstances of a particular case.


case_text: cautionary note was sounded by Hill J in Secretary Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32 at 42 in his Honour's observation that the term carried with it: ...no requirement that the case be extremely unusual, uncommon or exceptional. [emphasis added]


case_outcome: applied

case_title: Waterford v Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54


case_text: Ordinarily, costs are ordered on a party/party basis, and it is only if a case is "special" or out of the ordinary that indemnity costs may properly be ordered. In Hamod v New South Wales (2002) 188 ALR 659, Gray J (with whom the other members of the Full Court agreed) stated (at [20]) that indemnity costs served the purpose of compensating a party fully for costs incurred where the Court is of the view that it was "unreasonable for the party against whom the order is made to have subjected the innocent party to the exposure of costs". 5 The Administrators submit that it was unreasonable for the DCT to have subjected them to the cost of a five day hearing and to have persisted to the end in a wide ranging attack on the conduct, and, consequently, the professional standing, of Mr Hamilton, when: • as early as in the Report (dated 25 January 2006) and the Supplementary Report (dated 8 February 2006), Mr Hamilton explained that any question of any recoveries by a liquidator for the benefit of unsecured creditors was very doubtful; • any attempt to recover monies from third parties would require the funding of investigations, public examinations and recovery proceedings; • I was disposed not to set aside the DOCA primarily because of the absence of evidence or an undertaking to the Court by the DCT that she would fund investigations and public examinations, and, if recommended, recovery proceedings; • in these circumstances a winding up would serve no useful purpose (see earlier Reasons at [261]). 6 In the earlier Reasons (at [172] [190]) I accepted the Administrators' submission that the DOCA terminated on 21 June 2006. The Administrators submit that the DCT was put on notice of their contention that the DOCA had so terminated on or about 28 June 2006, yet persisted with the proceedings even though, according to their submission, a winding up application by the DCT was bound to fail because upon the termination of the DOCA the DCT had lost the status of a creditor of Wellnora (see s 459P(1)(b) of the Act).


case_text: The Administrators have made helpful written submissions in support of their application for indemnity costs. There is no dispute in relation to the governing principles. The categories of case in which the discretion to award costs on the indemnity basis may be properly exercised are not closed, and an order is not compelled by the mere fact that the circumstances fit within a literal description that has been given of the features of an earlier case in which indemnity costs were ordered: NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480 ; (2000) 109 FCR 77 at 92 [53] .


case_text: The contrast between the scope of the two expressions was said to be illustrated by BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155 ( BHP Petroleum ) and Watson v Secretary, Department of Family and Community Services [2003] FCA 415 ; (2003) 128 FCR 564 ( Watson ) on the one hand, and cases such as Murry ; Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 ( Hope ), and Ferguson v Federal Commissioner of Taxation [1979] FCA 29 ; (1979) 26 ALR 307 ( Ferguson ) on the other. 32 The decisions of BHP Petroleum and Watson also, in my view, do not support the contrast between the two expressions in s 35. 33 BHP Petroleum concerned the eligibility of certain taxpayers under the Petroleum Resource Rent Tax Assessment Act 1987 (Cth) to have their projects combined so that expenditure on one of the combined projects could be set off against revenue from another. Section 20 empowered the Minister to "... issue a combination certificate" if satisfied, having regard to specified factors, that the projects "are sufficiently related to be treated for the purposes of this Act as a single petroleum project". The application for the "combination certificate" had to be made "from" a person or persons who were together entitled to at least half of the receipts from the sale of marketable petroleum commodities produced in relation to each of the projects. The formal application, by oversight, omitted the name of one intended applicant whose entitlement was necessary to meet the one half eligibility criterion. In the circumstances, the Court (Beaumont, Jenkinson and Heerey JJ) found that the application had in fact been made by all the intended applicants, so that criterion was satisfied. Beaumont J at 170-171 explained that the word "from" had its ordinary meaning as indicating "the starting point, source or origin" of the application. That source had been clearly exposed by other communications. I do not, however, see any observations in the reasons which support the claimed contrast between "business activity" and "business". However, I think the meaning of the word "from" as discussed is equally applicable to that word in the phrase "from the business activity". 49 The relevant distinction which is drawn by s 35 is between assessable income from the business activity in a particular year and assessable income which is not from the business activity in a particular year. Income from a business activity must clearly have a connection with it. Beaumont J (with whom Jenkinson and Heerey JHJ agreed) in BHP Petroleum at 170-171 applied the normal sense of a starting point, source or origin. Finn J in Watson at 569 contrasted income from the business of Mr Watson and income that was a surrogate or replacement for income which might otherwise have been received. As noted above, such income may include income from incidental activities even though they are not, or not likely to be, recurrent (eg the interest on a temporary cash surplus, as in Kidston ; or the proceeds of a life insurance policy, as in Carapark ; or the cash incentive paid to take a long term lease, as in Lees and Leech . In certain circumstances, and in relation to a particular period, the assessable income of a business activity might also include for a time disability payments under a personal income protection policy. I do not need to decide that question.


case_text: The contrast between the scope of the two expressions was said to be illustrated by BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155 ( BHP Petroleum ) and Watson v Secretary, Department of Family and Community Services [2003] FCA 415 ; (2003) 128 FCR 564 ( Watson ) on the one hand, and cases such as Murry ; Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 ( Hope ), and Ferguson v Federal Commissioner of Taxation [1979] FCA 29 ; (1979) 26 ALR 307 ( Ferguson ) on the other. 32 The decisions of BHP Petroleum and Watson also, in my view, do not support the contrast between the two expressions in s 35. 34 Watson concerned the claim of Mr Watson and his wife for benefits under the Social Security Act 1991 (Cth). Section 1075(1) provided that "if a person carries on a business, the person's ordinary income from the business is to be reduced by ... losses and outcomings that relate to the business ...". Mr Watson was refused benefits because the payments under the PIP policy were not part of his ordinary income from his financial planning business, so as to allow the reduction for the losses and outgoings of the business. Consequently, the statutory threshold for eligibility for benefits was exceeded. Mr Watson argued, in that case, that the benefits under the PIP policy had the same character as the income they replaced, particularly as (he claimed) he had to continue to work in the business or in some other remunerative employment as a prerequisite to being paid partial disability payments. Finn J at 569 upheld the conclusion that the payments under the PIP policy were not "ordinary income from the business". The contractual income was a surrogate for, and was payable because of, the reduced ordinary income from the business. The distinction drawn by Finn J is helpful in addressing the present appeal. In that regard, Finn J did not appear to place especial weight on the word "ordinary" in his reasoning. However, I do not think his Honour's views support the contrast between "business" and "business activity" which was contended for. 49 The relevant distinction which is drawn by s 35 is between assessable income from the business activity in a particular year and assessable income which is not from the business activity in a particular year. Income from a business activity must clearly have a connection with it. Beaumont J (with whom Jenkinson and Heerey JHJ agreed) in BHP Petroleum at 170-171 applied the normal sense of a starting point, source or origin. Finn J in Watson at 569 contrasted income from the business of Mr Watson and income that was a surrogate or replacement for income which might otherwise have been received. As noted above, such income may include income from incidental activities even though they are not, or not likely to be, recurrent (eg the interest on a temporary cash surplus, as in Kidston ; or the proceeds of a life insurance policy, as in Carapark ; or the cash incentive paid to take a long term lease, as in Lees and Leech . In certain circumstances, and in relation to a particular period, the assessable income of a business activity might also include for a time disability payments under a personal income protection policy. I do not need to decide that question.


case_title: Federal Commissioner of Taxation v Murry (1998) 193 CLR 604

case_text: The PIP partial disability payments received by Mr Watson for the year ended 30 June 2004 are clearly part of his assessable income: see Federal Commissioner of Taxation v Smith [1981] HCA 10 ; (1981) 147 CLR 578. That is common ground. So too is the nature of Mr Watson's business activity during that year. It was that of a financial planner, although (as he says) that required administration and regulation compliance activities, each of which did not directly result in the earning of income. That was the activity he engaged in during the financial year ended 30 June 2004, and in earlier years, for the purpose of profit: cf Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at [54] ( Murry ). 28 The contrast between the scope of the two expressions was said to be illustrated by BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155 ( BHP Petroleum ) and Watson v Secretary, Department of Family and Community Services [2003] FCA 415 ; (2003) 128 FCR 564 ( Watson ) on the one hand, and cases such as Murry ; Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 ( Hope ), and Ferguson v Federal Commissioner of Taxation [1979] FCA 29 ; (1979) 26 ALR 307 ( Ferguson ) on the other. 31 The cases referred to by senior counsel for the Commissioner about the nature of a business also do not support the contrast sought to be drawn. Murry at 604; Hope at 8-9; and Ferguson at 311 all describe in generally consistent terms what is involved in carrying on a business. They do not suggest that the activities undertaken in doing so, so that they may be called "business activities" are somehow outside or distinct from the business itself. 41 Whether particular payments in a particular year of income under an income protection policy are income from the business activity will depend upon the particular facts. In Carapark Holdings Ltd v Commissioner of Taxation [1967] HCA 5 ; (1996) 115 CLR 653 ( Carapark ), the benefits received by a holding company of an employer taken out on the life of an employee of a subsidiary company were part of its assessable income. The Court (Kitto, Taylor and Owen JJ) said at 663: ... in general, insurance moneys are to be considered as received on revenue account where the purpose of the insurance was to fill the place of a revenue receipt which the event insured against has prevented from arising, or of any outgoing which has been incurred on revenue account in consequence of the event insured against, whether as a legal liability or as a gratuitous payment actuated only by considerations of morality or expediency. The fact that it was the holding company which took out the policy and received the benefits, rather than the subsidiary employing company, did not alter that position. As that passage indicates, the purpose of the taxpayer entering into the contract of insurance which produced the payment is relevant to identifying the relationship of the payment with the business. See e.g. Federal Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199 at 217; cf Murry at 626 [54].


case_text: The contrast between the scope of the two expressions was said to be illustrated by BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155 ( BHP Petroleum ) and Watson v Secretary, Department of Family and Community Services [2003] FCA 415 ; (2003) 128 FCR 564 ( Watson ) on the one hand, and cases such as Murry ; Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 ( Hope ), and Ferguson v Federal Commissioner of Taxation [1979] FCA 29 ; (1979) 26 ALR 307 ( Ferguson ) on the other. 31 The cases referred to by senior counsel for the Commissioner about the nature of a business also do not support the contrast sought to be drawn. Murry at 604; Hope at 8-9; and Ferguson at 311 all describe in generally consistent terms what is involved in carrying on a business. They do not suggest that the activities undertaken in doing so, so that they may be called "business activities" are somehow outside or distinct from the business itself.


case_text: In my opinion, the extrinsic materials do not indicate an intention to distinguish between those two expressions. They are discussed by Stone J in Commissioner of Taxation v Eskandari [2004] FCA 8 ; (2004) 134 FCR 569 ( Eskandari ) at [14]-[17]. I respectfully adopt her Honour's observations. I shall not repeat them in these reasons. The relevant legislative intention which appears to have underpinned Div 35 was to distinguish between "activities which are essentially private or lifestyle choices" and those which involve "genuine business activities" (see para 228 of "Review of Business Taxation a Tax System Redesigned", 1999). I also note, by way of illustration, that para 1.10 of the Explanatory Memorandum to the New Business Tax System (Integrity Measures) Bill 2000 (Cth) by which Div 35 came to be in the ITAA 1997 says: Division 35 does not change the existing income tax concept of what constitutes the carrying on of a business. The Division will apply within that environment to those individuals able to claim business deductions under the existing law on the grounds that they are carrying on a business and meet all existing tests of deductibility. 30 Paragraph 1.15, when comparing the key features of the proposed law and the current law, says that the change is to provide that the excess of deductions over assessable income from a business may be claimed against other income only if one of the tests is satisfied or the Commissioner exercises a discretion to permit it. 35 Eskandari is the only decision concerning Div 35 of Pt 2 - 5 of Ch 2 of the ITAA 1997 to which my attention was drawn. The taxpayer sought to set-off against his normal salary the losses incurred in his unrelated business activity as a registered migration agent. It was common ground that, unless he could bring himself within the exception to the application of s 35 - 10 provided by s 35 - 55 (1)(b)(i), s 35 - 10 would prevent him from setting off those losses. Section 35 - 55 (1)(b)(i) permitted the Commissioner to decide that the rule in s 35 - 10 does not apply to a business activity for a year or years of income if satisfied that it would be unreasonable to apply it because the business activity, in respect of the relevant income years, "because of its nature" would not satisfy one of the other tests imposed. Hence, the relevant issue was a narrow one: could s 35 - 55 (1)(b)(i) apply because of the nature of the business, namely that it was in its start-up phase and the anticipated revenue stream would not come about for some two years or more. The taxpayer claimed that his new business had that nature because he charged only a modest initial fee, and then incurred significant expense, and would only receive the substantial part of his fee when the visa application was granted, possibly some years later. Stone J decided that the term "because of its nature" referred to an inherent feature of the taxpayer's business activity in common with business activities of that type. Unless the "lead time" before a substantial success fee became payable was a common or inherent feature of migration agent businesses, rather than a consequence of how the taxpayer chose to charge, the exception in s 35 - 55 (1)(b)(i) could not apply and the Commissioner would not have a discretion to exercise. 36 Counsel for Mr Watson, at the other end of the spectrum of submissions, contended that there should be symmetry between the concepts of "taxable income" and "allowable deductions", in particular those deductions falling within the second limb of the income nexus test specified in s 8 - 1 (1)(b) of the ITAA 1997. If the premiums paid on the PIP policy were accepted as deductions by the Commissioner (as they apparently were), on the basis that they were necessarily incurred in carrying on the financial planning business, then payments made under the PIP policy should also be regarded as income received in carrying on the business.


case_title: Hope v The Council of The City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1