case_text: conclusions and findings of the Tribunal arising out of its evaluation of the evidence were plainly open to it having regard to the reasons identified by the Tribunal for reaching those conclusions. The appellant now contends that the real case having regard to the correct or expanded facts concerning his background circumstances and the full scope of the relevant facts giving rise to a well-founded fear of persecution, were not put to the Tribunal. Two things should be noted in this respect. Firstly, the Court's role on appeal is to determine whether the judgment of the Federal Magistrates Court of Australia reflects error on the part of that Court. To the extent that the appellant now wishes to contend for error on the basis of the merits of the factual evaluation by the Tribunal, no such ground of appeal is open to the appellant. An adjournment of the hearing would not be of any utility if the purpose of that adjournment is to enable the appellant to mount a challenge to the merits of the Tribunal's decision on the footing that the Federal Magistrates Court fell into error by failing to find error on the part of the Tribunal in the weight and emphasis it attributed to particular facts put before it. The finding made by the Tribunal as to the credibility of the appellant and the creditworthiness of his version of the facts, is an emblematic finding of fact in the sense described in the well known passage from the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] . Secondly, the desire of the appellant to put a consolidating and in some respects new and expansive statement of facts to the Court is not a basis upon which error on the part of the Federal Magistrates Court can be made out or jurisdictional error made out on the part of the Tribunal in reaching its decision. The ground of appeal relied upon by the appellant is that the Tribunal adopted a methodological or procedural approach to the gathering of evidence so as to inform itself about aspects of the appellant's contentions, which was not authorised by the Migration Act . It follows, it is said, that in gathering the evidence, the Tribunal stepped outside its statutory powers and thus exceeded its jurisdiction. The enquiries made by the Tribunal were these. On 31 August 2004, Taran Ramrakha, a senior researcher employed by the Tribunal, wrote to the Dir Area Development Organisation seeking information in relation to aspects of the appellant's claims put to the Tribunal. On 31 August 2004, Taran Ramrakha also wrote to the Human Rights Commission of Pakistan , the Revolutionary Association of the Women of Afghanistan and the Aurat Publication and Information Service Foundation . By each of these letters, the Tribunal sought to inform itself about aspects of the contentions made by the appellant for the purposes of the review proceeding before the Tribunal. On 6 January 2005, the Tribunal wrote to the appellant pursuant to s 424A giving details of information the Tribunal had received in response from each of these organisations.


case_outcome: cited

case_text: regard to the decisions of the Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 , questions might arise as to whether the enquiries made by the Tribunal complied with s 424B of the Act. However, the particular difficulty with the ground of appeal which is reliant upon contended steps taken in excess of jurisdiction, is this. The letters written by the Tribunal to each of the addressees to which there were responses, were considered by the Tribunal in reaching its first decision. However, the first decision of the Tribunal made on 30 May 2005 was set aside by the Federal Magistrates Court on 31 January 2007. The Tribunal, differently constituted, then conducted a review of the decision of the Minister's delegate, according to law. In doing so, the Tribunal on 31 August 2007 reached the conclusions and findings on credibility previously indicated. In doing so, it had regard to the seven topics identified in these reasons ([19]). The Tribunal in reaching its decision on 31 August 2007 did not rely upon the enquiries made of the addressees of the letters by the Tribunal as initially constituted. The Tribunal as reconstituted considered all of the factual contentions put before it by the appellant and his advisers and was unable to be persuaded of the appellant's creditworthiness. The Tribunal as reconstituted identified matters of inconsistency and set those matters out in letters addressed to the appellant pursuant to s 424A of the Act on 18 June 2007 (in relation to the issue concerning the booklet written by the appellant) and 13 July 2007 (concerning the appellant's travel in the months of April and May 2001).


case_title: SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119


case_text: the Tribunal did not rely upon any of the earlier enquiries of the third party addressees or responses from them, there can be no jurisdictional error on the part of the Tribunal in the exercise of its powers so far as those enquiries or responses to them are concerned. It is true that they became part of the historical record of the Tribunal's information gathering activities. However, in the conduct of the review function by the Tribunal as reconstituted, the enquiries of the nominated third parties and their responses to those letters, upon which the appellant relies as a ground of error on the part of the Tribunal, formed no part of the exercise of the statutory power. Thus, the Tribunal did not fall into error in the exercise of its power in the sense contemplated in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. In Yusuf , McHugh, Gummow and Hayne JJ said this at [82]: It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the [Refugee Review Tribunal]): "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it". "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. In order to try and overcome the obvious difficulty of no reliance by the Tribunal in reaching its credibility findings, on the letters to third parties and responses to those letters, the appellant contended before the Federal Magistrates Court that the Tribunal's second decision was fatally tainted by the steps earlier taken by the Tribunal. However, the Tribunal was reconstituted and exercised its powers in a way which fails to reflect any error in the sense contemplated by Craig v South Australia and Minister for Immigration v Yusuf .


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_outcome: considered

case_text: On 3 September 2007 the appellant filed his application for judicial review in the Federal Magistrates Court. On 22 February 2008 Orchiston FM dismissed the application: SZLGH v Minister for Immigration & Citizenship [2008] FMCA 187. On 10 March 2008 the appellant filed a notice of appeal to this Court. 5 The appellant set out his claims in his protection visa application. The RRT accurately summarised those claims, together with the claims made at the hearing, in its reasons for decision: " The applicant claims that he fears harm in his country because he was a member of the committee of the Chattra League, the student arm of the Awami League, when he was a student at the Omar Gani (MES) Degree College at Chittagaong in 1994. There was a split on the committee between the President, Mohi Uddin, who the applicant supported, and the Secretary, Bathen, who took bribes from the BNP. During orientation in January 1995 a student was killed in crossfire between the group led by the President and the applicant, and the Bathen group who were assisted by the BNP and its student wing, Chattra Daal. The BNP leaders and Chattra Daal lodged a murder case against Chattra League leaders especially against the Mohi Uddin group. The applicant went into hiding from 1995 and in 1999. He claims that there were charges laid against him, associated with the murder of the student, and he was wanted by the police and the [Rapid Action Battalion] . Although the [Awami League] came to power in 1996 an application for the withdrawal of the case against the applicant was refused. With the assistance of his father, the applicant went to Saudi Arabia in 1999 but he became illegal there and the authorities told him he had to leave by 30 December 2006. He came to Australia via Bangladesh in January 2007. " 6 The RRT found that the appellant's account of his student experiences was not credible. Whilst it accepted that he might have been involved in various activities such as publishing meeting dates of the Chattra League, it was not satisfied that he had a political profile of any kind or was of interest to the police or the Rapid Action Battalion ("RAB"), as he claimed.


case_outcome: applied

case_text: In Tooheys Limited v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602, the High Court was concerned to interpret provisions of the Stamp Duties Act 1920-1956 (NSW) which provided for the levying of duty on instruments, subject to exemptions, inter alia "relating to the services of apprentices, clerks and servants". The majority of the High Court held that the instrument under consideration was not an instrument "relating to the services of apprentices, clerks and servants" so as to be exempt from duty. Dixon CJ said at 614: "When the exemption clause speaks of an instrument relating to the services of apprentices, clerks, and servants, I understand it as meaning primarily an instrument dealing with the relationship of master and apprentice, master and clerk or master and servant. It may affect one term or all the terms of the relationship. It may govern or regulate the relationship or it may affect it less directly perhaps and still relate to it. But it is that with which it must deal." Taylor J said at 620-621: "There can be no doubt that the expression 'relating to' is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. With this in mind it may be said with some certainty that an examination of the language of the exempting provision shows that it does not admit of its application to an instrument merely because it makes a reference to the existence of a relationship of master and servant between the parties to it, or still less, because it refers to the existence of a master and servant relationship between persons who are not parties to it. It is, I think, not open to argument that 'relating to', in the context in which it appears, is equivalent to 'referring to' and the 'relationship' must be based upon some more substantial ground. It is, in my opinion, equally clear that the relationship must appear upon an examination of the instrument itself for it is the character of the instrument which is the material question and this cannot be resolved by an examination of extraneous matters in order to determine the purpose of the parties. In other words the condition for the operation of the exempting provision is that the instrument must 'relate' and not merely that a relationship of some kind can be made to appear by a consideration of the motive or purpose which has brought it into existence." Taylor J considered a line of authority which was said to provide support for a contrary proposition to that in the last sentence quoted. Taylor J concluded that the line of authority did not support a contrary proposition but rather was authority for the proposition that (at 622): "the vital question is whether the instrument 'relates' and not whether it may be 'related' by an examination of extraneous circumstances". 69 In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, Hill J was concerned to interpret s 6(2)(b)(ii) of the Trade Practices Act 1974 (Cth) which confined the operation of s 60 of that Act to conduct which took place in the course of or in relation to trade or commerce between Australia and places outside Australia. Hill J said at 487-488: "It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both 'vague and indefinite': see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 at 620. Like the phrase 'in respect of', the phrase 'in relation to' will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24 ; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used. As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with 'relates to': ' ... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.' (References omitted.)" 70 In Joye v Beach Petroleum NL (1996) 67 FCR 275, the Full Court of the Federal Court said at 285: "The relevant question here, whether the 'matter' is one 'relating to' a winding up, is concerned with the existence of a relationship. It does not raise a question of characterisation. Of the phrase 'relating to', Taylor J said, in Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35 ; (1961) 105 CLR 602 at 620: ' ... the expression ... is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used'" Taylor J went on to say (at 620) that 'relating to' in the context there considered was not the 'equivalent of 'referring to'; the 'relationship' must be based upon some more substantial ground'. Other decisions of the High Court have acknowledged that, ordinarily, 'relates to' is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 338 per Brennan J, at 347 per Dawson J, at 354 per Toohey J and at 370 per McHugh J; PMT Partners Pty Ltd (In liq) v Australian National Parks & Wildlife Service [1995] HCA 36 ; (1995) 69 ALJR 829 at 835-836 per Brennan CJ, Gaudron and McHugh JJ and at 845-846 per Toohey and Gummow JJ; Re Jarman; Ex parte Cook [1996] HCA 7 ; (1996) 70 ALJR 550 at 553 per Brennan CJ and Gaudron J and at 556 per Kirby J. Tooheys' case has been followed in this Court (see, eg, Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 374 per Hill J and at 383 per Cooper J). In our view, there is nothing in the present context to suggest that the term 'relating to', where used in s 580 and when picked up by s 581(4) , was not intended to have a wide operation or that an indirect, but relevant, connection would not be a sufficient relationship for present purposes." 73 The context in which s 1041H appears suggests that subs (1) is to have a wide operation. So much can be gleaned from subsec (2) and the varied types of conduct specified which do not limit the scope of s 1041H(1). Nevertheless there must be some ostensible connection or relationship on the face of the conduct, that is, a connection or relationship on the face of the letters with shares in CIL. To adopt and adapt the words of Dixon CJ in Tooheys Limited v Commissioner of Stamp Duties (NSW) (supra), the letters do not deal with shares in CIL. I also adopt and adapt the words of Taylor J in the same case: the relationship between the contents of the letters relied upon by the Commission and shares in CIL does not appear upon an examination of the letters themselves. As Taylor J said, and I accept, it is the character of the letters which is the material consideration. The contents of the letters on which the Commission relies do not relate to shares in CIL. 74 The consequence is that the Commission's allegations in relation to the 27 September letter and the 29 September letter and their contents do not demonstrate a contravention of s 1041H. The letters and the statements in them relied on by the Commission are not notices, statements or representations "in relation to" shares and securities in CIL, that is to say, in relation to financial products or financial services. Rather they are notices, statements or representations "in relation to" CIL itself or to a product manufactured, distributed and sold by CIL. The allegations might otherwise raise for consideration whether other provisions of the Act , such as s 1041E , might have been contravened, but the Commission has only alleged a contravention of s 1041H.


case_text: In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, Hill J was concerned to interpret s 6(2)(b)(ii) of the Trade Practices Act 1974 (Cth) which confined the operation of s 60 of that Act to conduct which took place in the course of or in relation to trade or commerce between Australia and places outside Australia. Hill J said at 487-488: "It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both 'vague and indefinite': see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 at 620. Like the phrase 'in respect of', the phrase 'in relation to' will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24 ; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used. As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with 'relates to': ' ... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.' (References omitted.)"


case_text: In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, Hill J was concerned to interpret s 6(2)(b)(ii) of the Trade Practices Act 1974 (Cth) which confined the operation of s 60 of that Act to conduct which took place in the course of or in relation to trade or commerce between Australia and places outside Australia. Hill J said at 487-488: "It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both 'vague and indefinite': see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 at 620. Like the phrase 'in respect of', the phrase 'in relation to' will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24 ; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used. As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with 'relates to': ' ... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.' (References omitted.)" 70 In Joye v Beach Petroleum NL (1996) 67 FCR 275, the Full Court of the Federal Court said at 285: "The relevant question here, whether the 'matter' is one 'relating to' a winding up, is concerned with the existence of a relationship. It does not raise a question of characterisation. Of the phrase 'relating to', Taylor J said, in Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35 ; (1961) 105 CLR 602 at 620: ' ... the expression ... is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used'" Taylor J went on to say (at 620) that 'relating to' in the context there considered was not the 'equivalent of 'referring to'; the 'relationship' must be based upon some more substantial ground'. Other decisions of the High Court have acknowledged that, ordinarily, 'relates to' is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 338 per Brennan J, at 347 per Dawson J, at 354 per Toohey J and at 370 per McHugh J; PMT Partners Pty Ltd (In liq) v Australian National Parks & Wildlife Service [1995] HCA 36 ; (1995) 69 ALJR 829 at 835-836 per Brennan CJ, Gaudron and McHugh JJ and at 845-846 per Toohey and Gummow JJ; Re Jarman; Ex parte Cook [1996] HCA 7 ; (1996) 70 ALJR 550 at 553 per Brennan CJ and Gaudron J and at 556 per Kirby J. Tooheys' case has been followed in this Court (see, eg, Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 374 per Hill J and at 383 per Cooper J). In our view, there is nothing in the present context to suggest that the term 'relating to', where used in s 580 and when picked up by s 581(4) , was not intended to have a wide operation or that an indirect, but relevant, connection would not be a sufficient relationship for present purposes."


case_title: Pico Holdings Inc v Voss [2004] VSC 263

case_text: I turn to the Commission's submission that Mr Narain personally engaged in the conduct alleged and therefore personally contravened s 1041H(1). Mr Narain's response was that if company officers and employees act as the company in furtherance of company activities, it is only the company that engages in the relevant conduct. He relied upon Pico Holdings Inc v Voss [2004] VSC 263. 76 The conduct relied upon by the Commission is the sending of the two letters containing misleading and deceptive statements to the Stock Exchange. Mr Narain did not send those letters himself. Mr Hanlon, CIL's company secretary sent the 27 September letter. There is no evidence that Mr Narain participated in the drafting or the sending of the 29 September letter. The only evidence relied upon by the Commission in support of its allegation that Mr Narain personally engaged in the conduct of preparing and sending the 29 September letter is that the letter contained the name of Mr Narain as one of two persons to contact for further enquiries. That is an inadequate factual basis for finding that Mr Narain engaged in the conduct of either preparing or sending that letter to the Stock Exchange. 77 I am not satisfied that Mr Narain personally engaged in any conduct relating to the preparation or sending of the 29 September letter. 86 Mr Narain contended further that Pico Holdings Inc v Voss (supra) was authority for the proposition that if company officers and employees act as the company in furtherance of company activities, it is only the company that engages in the relevant conduct. I do not read Pico Holdings Inc v Voss (supra) as standing for that proposition. In that case Mandie J made a specific finding that Mr Voss had not acted personally in the signing of the relevant promissory note. His Honour said at [157]: "This is not a case where the precise conduct of an alter ego of the company constitutes conduct both of the company and of the individual. In this case, the representation is expressly made in writing in the Promissory Note by Dominion Capital and not by Mr Voss ('Maker hereby represents to Payee ...'). Mr Voss did not make and did not purport to make that representation. The conduct of Mr Voss was participatory and was constituted by signing (on behalf of Dominion Capital) and sending (on behalf of Dominion Capital) the Promissory Note. It was the representation and conduct of the company and not of Mr Voss that was false and misleading. Unlike the case of Hamilton v Whitehead, the representation was not made by an individual in dual capacities; it was made by the company. Furthermore, approaching the matter from the point of view of the inducement to Pico and Pico's reliance on the representation, it seems to me that Pico was not induced by and did not rely upon any relevant representation or conduct of Mr Voss in advancing the money. What Pico relied on, and what Mr Hart said that he relied on, was the written terms of the document." [Citations omitted]


case_outcome: distinguished

case_text: So much was decided in Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553 where the High Court considered the scope of s 9(1) of the Fair Trading Act 1999 (Vic) which provided that: "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". The High Court, in substance, rejected the argument that if employees of a company act only as the company, it is the company which engages in the relevant conduct caught by s 9(1) and not the individuals who undertook that conduct. The High Court said at 566: "The appellants are fixed with the findings by the primary judge respecting the conduct in which they engaged, being certain acts and omissions. As indicated earlier in these reasons, these were 'in trade or commerce'. Why then are the appellants not persons who contravened the prohibition imposed by s 9 of the FT Act ? As a general proposition, and as Lord Rodger of Earlsferry stressed in Standard Chartered Bank v Pakistan National Shipping Corporation [No 2] [citation omitted ], ... in the world of tort the status of an individual as an employee does not divest that person of personal liability for wrongful acts committed while an employee. There is no good reason for treating the text of s 9 any differently and, in particular, for construing the section as if it read '[a] person, as principal, must not ...' . 85 Mr Narain submitted that Houghton v Arms (supra) did not support the Commission's case as it concerned the direct and co-existing liability of an employee and corporate principal under the provisions of the Fair Trading Act 1999 (Vic), the operation of which is specifically excluded by s 1041K of the Act . I do not consider that Houghton v Arms (supra) should be read so restrictively and in such a limited way. The High Court's analysis and construction of s 9 of the Fair Trading Act 1999 (Vic) (par [82] above) applies with equal force to s 1041H of the Act . 87 Nevertheless it is still necessary to establish that Mr Narain personally engaged in the relevant conduct of which the Commission complained, that is, that he personally engaged in the conduct of publishing the announcement and making the misrepresentations said to be contained in it. As I have noted earlier, although Mr Narain participated in the preparation and drafting of the 27 September letter and although he instructed the company secretary of CIL to send it to the Stock Exchange, he did not personally publish the letter. CIL sent it to the Stock Exchange through the medium of its company secretary. Nor did he personally make the misrepresentations relied upon by the Commission in the same manner as Mr Mehra did to the Standard Chartered Bank (par [83] above). Houghton v Arms (supra) is an example of a different situation where the individual employees of the company, Messrs Houghton and Student, personally made the relevant misrepresentations. So also in Arktos Pty Ltd v Idyllic Nominees Pty Ltd (supra) where Mr Price, a director the respondent company had personally made the misrepresentation relied upon by the applicant against the company and Mr Price. So also in Standard Chartered Bank v Pakistan National Shipping Corporation [No 2] (supra) where Mr Mehra, the managing director of Oakprime Ltd, signed the letter containing the false statement.


case_text: So much was decided in Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553 where the High Court considered the scope of s 9(1) of the Fair Trading Act 1999 (Vic) which provided that: "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". The High Court, in substance, rejected the argument that if employees of a company act only as the company, it is the company which engages in the relevant conduct caught by s 9(1) and not the individuals who undertook that conduct. The High Court said at 566: "The appellants are fixed with the findings by the primary judge respecting the conduct in which they engaged, being certain acts and omissions. As indicated earlier in these reasons, these were 'in trade or commerce'. Why then are the appellants not persons who contravened the prohibition imposed by s 9 of the FT Act ? As a general proposition, and as Lord Rodger of Earlsferry stressed in Standard Chartered Bank v Pakistan National Shipping Corporation [No 2] [citation omitted ], ... in the world of tort the status of an individual as an employee does not divest that person of personal liability for wrongful acts committed while an employee. There is no good reason for treating the text of s 9 any differently and, in particular, for construing the section as if it read '[a] person, as principal, must not ...' . 83 In Standard Chartered Bank v Pakistan National Shipping Corporation [No 2] [2002] UKHL 43 ; [2003] 1 AC 959 the House of Lords held that the managing director of a company who made fraudulent representations in the course of his employment could not escape personal liability on the ground that he was acting within the scope of his employment and was committing the fraud on behalf of his employer. The Court of Appeal had accepted the submission that the managing director committed no deceit because he made the representation on behalf of the company and it was relied upon as a representation by the company. The House of Lords regarded that fact as irrelevant. Lord Hoffman, with whom the other members of the House of Lords agreed, said, at 968: "Mr Mehra made a fraudulent misrepresentation intending SCB to rely upon it and SCB did rely upon it. The fact that by virtue of the law of agency his representation and the knowledge with which he made it would also be attributed to Oakprime would be of interest in an action against Oakprime. But that cannot detract from the fact that they were his representation and his knowledge. He was the only human being involved in making the representation to SCB (apart from administrative assistance like someone to type the letter and carry the papers round to the bank). It is true that SCB relied upon Mr Mehra's representation being attributable to Oakprime because it was the beneficiary under the credit. But they also relied upon it being Mr Mehra's representation, because otherwise there could have been no representation and no attribution." Lord Rodger delivered a concurring judgment and said at 974: "Where someone commits a tortious act, he at least will be liable for the consequences; whether others are liable also depends on the circumstances. Here, as the facts make plain and as Cresswell J specifically found, 'all the ingredients of the tort of deceit are made out against Mr Mehra (and Oakprime)'. In other words Standard Chartered have proved all that is required to make Mr Mehra and through him Oakprime liable in deceit. That being so, there is no conceivable basis upon which Mr Mehra should not indeed be held liable for the loss that Standard Chartered suffered as a result of his deceit. If he had been a mere employee of Oakprime and had done the same things and written the same letters on behalf of the company in that capacity, it could never have been suggested that Mr Mehra was not personally liable for his fraudulent acts. His status as a director when he executed the fraud cannot invest him with immunity." 87 Nevertheless it is still necessary to establish that Mr Narain personally engaged in the relevant conduct of which the Commission complained, that is, that he personally engaged in the conduct of publishing the announcement and making the misrepresentations said to be contained in it. As I have noted earlier, although Mr Narain participated in the preparation and drafting of the 27 September letter and although he instructed the company secretary of CIL to send it to the Stock Exchange, he did not personally publish the letter. CIL sent it to the Stock Exchange through the medium of its company secretary. Nor did he personally make the misrepresentations relied upon by the Commission in the same manner as Mr Mehra did to the Standard Chartered Bank (par [83] above). Houghton v Arms (supra) is an example of a different situation where the individual employees of the company, Messrs Houghton and Student, personally made the relevant misrepresentations. So also in Arktos Pty Ltd v Idyllic Nominees Pty Ltd (supra) where Mr Price, a director the respondent company had personally made the misrepresentation relied upon by the applicant against the company and Mr Price. So also in Standard Chartered Bank v Pakistan National Shipping Corporation [No 2] (supra) where Mr Mehra, the managing director of Oakprime Ltd, signed the letter containing the false statement.


case_text: A similar approach was taken by a Full Court of the Federal Court in Arktos Pty Ltd v Idyllic Nominees Pty Ltd (2004) ATPR 42-005 at 48,795: "The authorities show that a director of a corporation who acts on its behalf in the course of trade or commerce also acts himself or herself in trade or commerce and, if the corporation is liable under a State Fair Trading Act for their conduct, they also attract primary liability under the same statute: [citations omitted]". 87 Nevertheless it is still necessary to establish that Mr Narain personally engaged in the relevant conduct of which the Commission complained, that is, that he personally engaged in the conduct of publishing the announcement and making the misrepresentations said to be contained in it. As I have noted earlier, although Mr Narain participated in the preparation and drafting of the 27 September letter and although he instructed the company secretary of CIL to send it to the Stock Exchange, he did not personally publish the letter. CIL sent it to the Stock Exchange through the medium of its company secretary. Nor did he personally make the misrepresentations relied upon by the Commission in the same manner as Mr Mehra did to the Standard Chartered Bank (par [83] above). Houghton v Arms (supra) is an example of a different situation where the individual employees of the company, Messrs Houghton and Student, personally made the relevant misrepresentations. So also in Arktos Pty Ltd v Idyllic Nominees Pty Ltd (supra) where Mr Price, a director the respondent company had personally made the misrepresentation relied upon by the applicant against the company and Mr Price. So also in Standard Chartered Bank v Pakistan National Shipping Corporation [No 2] (supra) where Mr Mehra, the managing director of Oakprime Ltd, signed the letter containing the false statement.


case_text: The expression "in relation to" has been the subject of judicial consideration in a number of different contexts. A consistent theme running through the case is that the expression "in relation to" gathers its meaning from the context in which it appears and the purpose for which it appears: see, eg, Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416 ; (1999) 168 ALR 211 at 225, per Fitzgerald JA. The words "in relation to" have a very wide meaning, but like the expression "in respect of", they do not extend to "any relationship however tenuous": Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24 ; (1989) 167 CLR 45 at 51; The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-654. See generally, D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), pp 359-367 and the cases there cited.


case_title: The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642


case_text: The expression "in relation to" has been the subject of judicial consideration in a number of different contexts. A consistent theme running through the case is that the expression "in relation to" gathers its meaning from the context in which it appears and the purpose for which it appears: see, eg, Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416 ; (1999) 168 ALR 211 at 225, per Fitzgerald JA. The words "in relation to" have a very wide meaning, but like the expression "in respect of", they do not extend to "any relationship however tenuous": Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24 ; (1989) 167 CLR 45 at 51; The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-654. See generally, D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), pp 359-367 and the cases there cited. 69 In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, Hill J was concerned to interpret s 6(2)(b)(ii) of the Trade Practices Act 1974 (Cth) which confined the operation of s 60 of that Act to conduct which took place in the course of or in relation to trade or commerce between Australia and places outside Australia. Hill J said at 487-488: "It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both 'vague and indefinite': see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35 ; (1961) 105 CLR 602 at 620. Like the phrase 'in respect of', the phrase 'in relation to' will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24 ; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used. As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 in discussing a number of the cases dealing with 'relates to': ' ... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.' (References omitted.)"


case_title: Parkin v O'Sullivan [2006] FCA 1413

case_text: The applicant Director-General of Security seeks leave to appeal from a decision of Sundberg J: Parkin v O'Sullivan [2006] FCA 1413. His Honour directed that the parties confer as to the appropriate orders for discovery and if they were unable to agree that they should file written submissions as to the orders that should be made. In substance, there was an order directing discovery and it is that order against which the Director-General of Security seeks leave to appeal. 2 Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), I have to exercise a discretion as to the grant of leave. 3 There are two proceedings: Parkin v O'Sullivan (VID 1594 of 2005), and Sagar and Faisal v O'Sullivan (VID 188 of 2006), the discovery applications in which were heard together because they raised similar questions of law. The respondent Mr Parkin is a citizen of the United States of America who entered Australia in June 2005 with a tourist visa valid for six months. According to a public report by the Inspector-General of Intelligence and Security dated 29 November 2005, Mr Parkin describes himself as "a proponent of non-violent direct action and peaceful civil disobedience against the war in Iraq". 4 His visa was cancelled in September 2005 because of an adverse security assessment issued by the Director-General appointed pursuant to s 7 Australian Security Intelligence Organisation Act 1979 (Cth). He was then detained. Some days later, at his own request, he was removed from Australia. 5 In his statement of claim he alleges in par 6 that from time to time, after he entered Australia pursuant to his visa, he "exercised his right to engage in lawful advocacy, protest or dissent within the meaning of s 17A of the ASIO Act".


case_title: Church of Scientology Inc v Woodward [1980] HCA 38 ; (1982) 154 CLR 25

case_text: First, there is an arguable case that his Honour did not correctly apply authorities binding on him which say that the bare assertion of a claim without any factual foundation will not justify an order for discovery: Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, Lloyd and Costigan (1983) 82 FLR 104 at 113-114, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, Minister for Immigration v Wong [2002] FCAFC 327 at [30] and Jilani v Wilhelm [2005] FCAFC 269 ; (2005) 148 FCR 255 at 273-274. The last mentioned authority, senior counsel for the Director-General submits, was relied on before his Honour, but not mentioned in the judgment. Moreover, this approach is the more justified in cases where questions of national security are involved; see the Church of Scientology case.


case_title: Lloyd and Costigan (1983) 82 FLR 104 at 113-114


case_title: WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 at [30]


case_text: After considering the proposed orders, the history of this matter, and the submissions of Counsel I am satisfied that the orders proposed by the parties in relation to the contempt charges are appropriate in the circumstances. My reasons are as follows: 1. I accept the applicant's submissions in relation to withdrawing the charges against the first respondent. I note that the first respondent is in liquidation, and the submission in Court on Monday by Mr Aggs, liquidator of the first respondent, that the first respondent is insolvent. I accept the proposition that, in these circumstances, pursuit of the first respondent, which is a corporate entity, is pointless. There are no funds to satisfy any orders, for example, for a fine or costs. It is therefore appropriate for the Court to grant leave to the applicant to withdraw these charges. 2. I accept the applicant's submissions as to withdrawing the charges against the fifth respondent, in light of his age, his role in the conduct the subject of the applicant's claims, and the concession by the applicant as to the evidence against him. 3. I note that the second, third and fourth respondent have pleaded guilty, which is an issue to be taken into consideration for the purposes of sentence ( NW Foods 71 FCR at 293). I note also the submission of Mr Atkinson for the second, third and fourth respondents that, in pleading guilty, the respondents have avoided the need for two trials, each of which was estimated to be four to five weeks, and have therefore relieved the resources of both the Court and the applicant (cf NW Foods 71 FCR at 291). 4. In this case, the second, third and fourth respondents have pleaded guilty to a statement of charge alleging deliberate and repeated instances of contempt of the orders of Cooper J. Given the nature of the contempt, a significant penalty is in order. 5. The Courts have generally accepted that a term of imprisonment is appropriate only in the most serious criminal contempt cases: R v Fletcher; Ex parte Kisch [1935] HCA 1 ; (1935) 52 CLR 248 at 257 per Evatt J, Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238. In this case the proposal of the parties that the third and fourth respondents be sentenced to six months imprisonment, albeit suspended, is at the high end of the range of penalty for contempt, particularly as it is common ground that the respondents had not previously been found by the Court to have acted in contempt. However, the serious nature of the contempt charges in this case, to which the second, third and fourth respondents have pleaded guilty, in my view warrants the prospect of a period of imprisonment. 6. The Federal Court is empowered to impose a sentence of imprisonment for contempt of court, to be suspended on conditions including as to length of time of the suspension: Hughes (trading as Crowded Planet) v Australian Competition & Consumer Commission [2004] FCAFC 319 at [56] . In the case before me, the proposal that the sentence of six months be suspended for two years is consistent with other decisions involving similarly serious contempts of court (cf Hughes [2004] FCAFC 319 at [57] ). 7. In my view, however, while the sentence is at the higher range, it is not so high as to be oppressive ( NW Foods 71 FCR at 293, cf Australian Securities and Investments Commission v Matthews (2001) 39 ACSR 110 where the contemnor was sentenced to twelve months imprisonment, suspended for two years and the Court similarly found that the sentence was not so high as to be oppressive). 8. I note the parties jointly propose that the period of imprisonment of the third and fourth respondents be suspended. In this context however I note that the applicant in this case is the State regulator in the field of consumer protection. It is appropriate to accord weight to the views of the regulator, in particular as to the deterrent quality both for the respondents and for others who may be disposed to engage in conduct of a similar kind ( NW Foods 71 FCR at 292, Mobil Oil [2004] FCAFC 72 at [79] ). 9. Although the award of costs is at the discretion of the Court, commonly in contempt cases there is a link between the award of indemnity costs and the penalty, where the award of costs is in lieu of a fine: Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 per Moore J at [8]-[12]. In this case the proposed orders do not include a fine to be paid by the second, third and fourth respondents, however they do impose an obligation on these respondents to pay a not insignificant sum in costs to the applicant. 10. I am satisfied that this is not a case where the nature of the proposed penalty is an insufficient deterrent by community standards so as to cause the Court to decline to sanction the proposal. I note the submissions by Mr Atkinson that the suspension of the six month sentence results in the third and fourth respondents being their own "judge and jury" for 24 months and that this is well-calculated to ensure their good behaviour. While this remains to be seen in practice, the detailed and clear nature of the proposed orders, the permanent restraints on the conduct of the respondents as articulated in the proposal, the not inconsiderable length of time during which the sentence is suspended and the default period of imprisonment in the event of breach of the orders in my view means that the proposed penalty appropriate in this case.


case_title: Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13


case_text: The third and fourth categories of proposed restraint are broad, and the Court must be satisfied that there is an appropriate nexus between the contravening conduct as alleged and the orders. As Mr Couper for the applicant submitted, this issue in the context of restraining orders pursuant to s 80 TPA was addressed recently by the Full Court in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; [2006] 149 FCR 135 at 149 where their Honours observed: In our view, the need, suggested by the authorities, for a nexus between the contravention of the Act which the Court has found and the terms of the restraint which it then decides to impose is a specific reflection of Lockhart J's insistence that the power be exercised 'judicially and sensibly'. It goes to the appropriateness of the relief contemplated by the concluding words of s 80(1), not to the extent of the power to grant it. If the Court considers that a complete prohibition, whether permanently or for a specified period, on a respondent's engaging in a particular field of commercial activity or industry is required to protect the public from conduct of the kind which constituted the contravention, s 80 is wide enough to support such a prohibition as a matter of power... 11 Given the history of this matter, the conduct alleged, and the proposed consent to this restraint by the third, fourth and fifth respondents, I am satisfied that the proposed orders as detailed in the draft Consent Orders are appropriate in the circumstances, and I set them out in full in the orders of this judgment. 12 Finally, the parties have also submitted that the contempt charges against the respondents be resolved in accordance with the proposal contained in the draft Consent Order filed on Monday. I note that these charges relate only to breaches of the orders of Cooper J in respect of which the statement of charge alleges contempt. Otherwise they do not relate to the substance of the matters alleged in the primary application. 13 The details of the proposal to resolve the contempt charges against the respondents are as follows: First respondent 14 As the first respondent is in liquidation, the applicant seeks the leave of the Court to withdraw the contempt charges against it. Second respondent


case_title: Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238


case_title: Hughes (trading as Crowded Planet) v Australian Competition & Consumer Commission [2004] FCAFC 319


case_text: Relevant principles for the Court when a negotiated resolution of contraventions of the law is advanced by the parties were considered by the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72. So far as are applicable to this case, the principles articulated in these cases are as follows: 1) It is the responsibility of the court to determine the appropriate penalty to be imposed. 2) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. 3) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. 4) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. 5) In determining whether the proposed penalty is appropriate, the court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. 6) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. 24 The Full Court in Mobil Oil [2004] FCAFC 72 emphasised however the responsibility of the Court in considering the proposal of this nature of the parties as their Honours said at [79]: But in neither [criminal nor civil penalty] case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). 25 After considering the proposed orders, the history of this matter, and the submissions of Counsel I am satisfied that the orders proposed by the parties in relation to the contempt charges are appropriate in the circumstances. My reasons are as follows: 1. I accept the applicant's submissions in relation to withdrawing the charges against the first respondent. I note that the first respondent is in liquidation, and the submission in Court on Monday by Mr Aggs, liquidator of the first respondent, that the first respondent is insolvent. I accept the proposition that, in these circumstances, pursuit of the first respondent, which is a corporate entity, is pointless. There are no funds to satisfy any orders, for example, for a fine or costs. It is therefore appropriate for the Court to grant leave to the applicant to withdraw these charges. 2. I accept the applicant's submissions as to withdrawing the charges against the fifth respondent, in light of his age, his role in the conduct the subject of the applicant's claims, and the concession by the applicant as to the evidence against him. 3. I note that the second, third and fourth respondent have pleaded guilty, which is an issue to be taken into consideration for the purposes of sentence ( NW Foods 71 FCR at 293). I note also the submission of Mr Atkinson for the second, third and fourth respondents that, in pleading guilty, the respondents have avoided the need for two trials, each of which was estimated to be four to five weeks, and have therefore relieved the resources of both the Court and the applicant (cf NW Foods 71 FCR at 291). 4. In this case, the second, third and fourth respondents have pleaded guilty to a statement of charge alleging deliberate and repeated instances of contempt of the orders of Cooper J. Given the nature of the contempt, a significant penalty is in order. 5. The Courts have generally accepted that a term of imprisonment is appropriate only in the most serious criminal contempt cases: R v Fletcher; Ex parte Kisch [1935] HCA 1 ; (1935) 52 CLR 248 at 257 per Evatt J, Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238. In this case the proposal of the parties that the third and fourth respondents be sentenced to six months imprisonment, albeit suspended, is at the high end of the range of penalty for contempt, particularly as it is common ground that the respondents had not previously been found by the Court to have acted in contempt. However, the serious nature of the contempt charges in this case, to which the second, third and fourth respondents have pleaded guilty, in my view warrants the prospect of a period of imprisonment. 6. The Federal Court is empowered to impose a sentence of imprisonment for contempt of court, to be suspended on conditions including as to length of time of the suspension: Hughes (trading as Crowded Planet) v Australian Competition & Consumer Commission [2004] FCAFC 319 at [56] . In the case before me, the proposal that the sentence of six months be suspended for two years is consistent with other decisions involving similarly serious contempts of court (cf Hughes [2004] FCAFC 319 at [57] ). 7. In my view, however, while the sentence is at the higher range, it is not so high as to be oppressive ( NW Foods 71 FCR at 293, cf Australian Securities and Investments Commission v Matthews (2001) 39 ACSR 110 where the contemnor was sentenced to twelve months imprisonment, suspended for two years and the Court similarly found that the sentence was not so high as to be oppressive). 8. I note the parties jointly propose that the period of imprisonment of the third and fourth respondents be suspended. In this context however I note that the applicant in this case is the State regulator in the field of consumer protection. It is appropriate to accord weight to the views of the regulator, in particular as to the deterrent quality both for the respondents and for others who may be disposed to engage in conduct of a similar kind ( NW Foods 71 FCR at 292, Mobil Oil [2004] FCAFC 72 at [79] ). 9. Although the award of costs is at the discretion of the Court, commonly in contempt cases there is a link between the award of indemnity costs and the penalty, where the award of costs is in lieu of a fine: Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 per Moore J at [8]-[12]. In this case the proposed orders do not include a fine to be paid by the second, third and fourth respondents, however they do impose an obligation on these respondents to pay a not insignificant sum in costs to the applicant. 10. I am satisfied that this is not a case where the nature of the proposed penalty is an insufficient deterrent by community standards so as to cause the Court to decline to sanction the proposal. I note the submissions by Mr Atkinson that the suspension of the six month sentence results in the third and fourth respondents being their own "judge and jury" for 24 months and that this is well-calculated to ensure their good behaviour. While this remains to be seen in practice, the detailed and clear nature of the proposed orders, the permanent restraints on the conduct of the respondents as articulated in the proposal, the not inconsiderable length of time during which the sentence is suspended and the default period of imprisonment in the event of breach of the orders in my view means that the proposed penalty appropriate in this case.


case_text: Relevant principles for the Court when a negotiated resolution of contraventions of the law is advanced by the parties were considered by the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72. So far as are applicable to this case, the principles articulated in these cases are as follows: 1) It is the responsibility of the court to determine the appropriate penalty to be imposed. 2) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. 3) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. 4) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. 5) In determining whether the proposed penalty is appropriate, the court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. 6) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.


case_title: R v Fletcher; Ex parte Kisch [1935] HCA 1 ; (1935) 52 CLR 248


case_outcome: referred to

case_text: Smith FM noted that it was not necessary for the Tribunal to discuss the chance of harm occurring which it found was less than probable, provided the Tribunal made findings of fact which permitted a conclusion that the fear of persecution was not well-founded: see Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCA 794 ; (1999) 93 FCR 220 at 239-241; Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11] - [14] . His Honour noted that such a factual finding had been made by the Tribunal, and accordingly found that the Tribunal had not failed to appreciate or apply the 'real chance' test.


case_text: Under this ground, three separate issues are raised. Firstly, the appellant submits that the Tribunal erred by failing to consider whether there was a real chance that the appellant would suffer persecution if he returned to Lebanon. The appellant submits that the Tribunal's finding that '... those targeted were easily identifiable members of SLA, mostly from Southern Lebanon...' did not take account of former SLA members who do not satisfy such profile. It is submitted that the Tribunal failed to apply the correct test because it did not take account of a person who did not have the characteristics relied upon by the Tribunal to reach its conclusion that there was no chance of persecution, and that its finding left open the possibility that the appellant could be the subject of persecution. The appellant submits that the Tribunal accordingly failed to apply the test in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where Mason CJ said at 389: If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.


case_outcome: followed

case_text: Smith FM was not persuaded that the Tribunal failed to apply the 'real chance' test. His Honour, in rejecting the appellant's submissions, observed that the appellant had concentrated attention on particular parts of the Tribunal's reasoning in isolation from its general expression. His Honour noted that such approach had been discouraged in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6 ; (1996) 185 CLR 259 at 291. The Court is unable to find any error in his Honour's reasoning.


case_title: Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCA 794 ; (1999) 93 FCR 220


case_text: The appellant relies upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 63 ; (2006) 228 CLR 152 in which the High Court of Australia held that the Tribunal erred because it did not challenge or express any reaction to answers provided by the appellant and later rejected claims which had been accepted by the delegate. 37 In SZBEL the High Court of Australia said at [35]: The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step 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". 38 Smith FM said at [40]: The present case has no direct parallel with SZBEL, since the Tribunal's finding which is complained of did not concern an issue of credibility which appeared uncontentious in the delegate's decision. In the present case, the applicant first presented his full claims to the Tribunal, and in particular his claim to fear reprisal from individuals in whose arrest he had been involved more than 20 years previously. 39 Contrary to such finding, and the Minister's submission that SZBEL only relates to issues of credibility, the Court finds that SZBEL does apply. The decision in SZBEL makes it plain that if the Tribunal is to determine the application before it adversely to the applicant for a specific reason, it is obliged to put that circumstance to the applicant and to invite the applicant to respond. The Court in SZBEL said at [47]: But where...there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [emphasis in original] 40 The Tribunal letter addressed the appellant's claims relating to his fear of persecution including his claim that he feared persecution from individuals whom he had arrested, and invited the appellant to comment on such claims generally. It was necessary for the Tribunal to put directly to the appellant that one of its concerns was his inability to identify the persons who might harm him if the Tribunal was going to make a factual finding adverse to the appellant on that issue. Since the Tribunal had not specifically asked for the identity of the relevant persons at the hearing and had not requested details of such in the Tribunal letter, the appellant was not placed on notice that unless he provided such detail, the Tribunal might make an adverse finding against him. 41 The Court is satisfied that the 'issues to which those reasoning processes were directed' (see SZBEL at [21]) were not adequately notified to the appellant. The Tribunal's finding that the appellant could not 'name or identify those persons' was a finding in respect of an issue upon which the appellant had not been afforded an opportunity to respond. 42 The Court is satisfied that a breach of s 425 of the Migration Act has occurred. It follows that the appellant's appeal is upheld. The first respondent is to pay the costs of the appellant. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 17 June 2008 Counsel for the Appellant: Mr Prince with Mr Bradley Solicitor for the Appellant: Henry Davis York Counsel for the Respondent: Mr Cleary Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 21 April 2008 Date of Judgment: 17 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/910.html


case_text: Secondly, the appellant submits that the Tribunal considered the risk of persecution in the past and present but did not consider that the appellant could suffer harm in the future. The appellant relies upon the decision of this Court in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [28] - [30] which held that the Court must have an 'adequately forward-looking analysis' (see SZGHS per Allsop J at [30]) when considering the prospects of persecution. 22 The Tribunal's reasons show that in reaching its conclusion it considered external information together with information supplied subsequent to the hearing in a letter from the appellant's adviser. Such letter included an extract from an Amnesty International report which referred to the possibility of reprisal attacks by Hezbollah against former Israeli collaborators. The Tribunal found: The adviser argued that Hezbollah was subjecting former SLA members to persecution and the threat of harm has increased significantly since the outbreak of hostilities with Israel in 2006. The adviser referred the Tribunal to several reports dealing with reprisals against SLA members who were suspected of collaborating with Israel before and after the 2006 conflict. The adviser argued that the applicant will be at risk of imprisonment and denied protection by the State because he was with the SLA. 23 The Federal Magistrate excerpted the above passage and concluded that the Tribunal had considered whether, in the future, the appellant would be subjected to the same risk.


case_title: SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169

case_text: Smith FM said at [40]-[41]: In my opinion, it should have been apparent to him [the appellant] and his advisers when doing so, that the Tribunal might draw inferences from the absence of any identification of particular persons who were feared, or of incidents or circumstances which suggested that there were particular persons who had an interest in pursuing him after 20 years (compare Bennett J in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [21] and SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14] ). In my opinion, the obligations on the Tribunal under s.425 to warn an applicant as to the issues in the review did not, in the present case, require it to alert the applicant to the possibility that it might draw an inference from his evidence that he could not name or identify the persons whom he claimed to fear.


case_title: SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486


case_text: The purpose of a provision such as s 420(2) was explained by Gummow and Heydon JJ, with whose reasons Gleeson CJ agreed, in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 ('Ruddock') at [56] as follows: '56 ... The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.' 26 The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which relevantly, for present purposes, provides as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse ... of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.' The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as 'the Convention'. 28 As has been said many times, proceedings in the Tribunal are not adversarial, but rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Ruddock at [57]). The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Ruddock at [57]-[58]).


case_text: Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220 ('Rajalingham') refer to the 'civil standard of proof' being not irrelevant to the process of fact-finding by the Refugee Review Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 ; 114 FCR 212 ('Kalala') refer to the Tribunal being obliged to consider matters on 'a standard less than the balance of probabilities' (see at [25]), I doubt the utility of addressing matters on which the Tribunal has to be 'satisfied' by a standard which is related to the standard of proof required in adversarial civil litigation. 84 Reference was made to Sackville J's leading judgment in Rajalingam where 'what if I am wrong?' terminology had been used. In SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 Bennett J referred to Sackville J's distillation of principle in Rajalingam as follows, at [46] and [48]: '46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear ..., whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. ... ... 48 ... Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its finding of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities ... In Kalala conclusions reached by the Tribunal as to whether certain events did nor did not take place were attended by significant doubt. At [6]-[7] North and Madgwick JJ stated [in Kalala] that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded. '


case_text: Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220 ('Rajalingham') refer to the 'civil standard of proof' being not irrelevant to the process of fact-finding by the Refugee Review Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 ; 114 FCR 212 ('Kalala') refer to the Tribunal being obliged to consider matters on 'a standard less than the balance of probabilities' (see at [25]), I doubt the utility of addressing matters on which the Tribunal has to be 'satisfied' by a standard which is related to the standard of proof required in adversarial civil litigation.


case_text: In NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6 ; (2005) 222 CLR 161 ('NAGV') the High Court considered s 36(2) of the Act in the form in which it existed prior to the passage of the Border Protection Legislation Amendment Act 1999 (Cth). Relevantly, for present purposes, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ said at [31]-[33]: '31 ... a perusal of the Convention shows that, Art 33 apart, there is a range of requirements imposed upon Contracting States with respect to refugees some of which can fairly be characterised as "protection obligations". Free access to courts of law (Art 16(1)), temporary admission to refugee seamen (Art 11), and the measure of religious freedom provided by Art 4 are examples. 32 ... Section 36(2) does not use the term "refugee". But the "protection obligations under [the Convention]" of which it does speak are best understood as a general expression of the precept to which the Convention gives effect. The Convention provides for Contracting States to offer "surrogate protection" in the place of that of the country of nationality of which, in terms of Art 1A(2), the applicant is unwilling to avail himself. That directs attention to Art 1 and to the definition of the term "refugee". 33 Such a construction of s 36(2) is consistent with the legislative history of the Act. This indicates that the terms in which s 36 is expressed were adopted to do no more than present a criterion that the applicant for the protection visa had the status of a refugee because that person answered the definition of "refugee" spelt out in Art 1 of the Convention.' (Footnotes omitted) 30 Article 33(1) of the Convention, to which reference was made in NAGV , provides: '1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.' 31 The question of who answers the description of a 'refugee' is relevantly determined by Article 1of the Convention which relevantly provides: 'A. For the purposes of the present Convention, the term "refugee" shall apply to any person who: ... (2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable or, owing to such fear, is unwilling to return to it.' 47 After the applications for protection visas in NAGV were lodged, new subsections (3)-(7) were inserted into s 36 of the Act by the Border Protection Legislation Amendment Act 1999 (Cth), which new subsections commenced on 16 December 1999. These subsections were included as part of ' Part 6 Amendments to prevent forum shopping'. Another provision inserted into the Act as part of Part 6 was s 91M which formed part of a new 'Subdivision AK Non-citizens with access to protection from third countries'. That section provided: '91M This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.' 48 The legislative purpose recorded in s 91M is consistent with the legislative intention which is evident in s 36(3) of the Act i.e. to tighten up the circumstances in which non-citizens in Australia may become entitled to the grant of protection visas. 49 Section 36(3) of the Act provides: '36(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.'


case_text: The definition of 'refugee' is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') at [16]). 33 The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]).


case_text: The definition of 'refugee' is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 ('SZATV') at [16]). 33 The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). 35 Because it is the primary responsibility of the country of nationality to safeguard fundamental human rights and freedoms, the international responsibility has been described as a form of 'surrogate protection'. 'Protection' in that sense has a broader meaning than the narrower sense in which the term is used in Art 1A(2) but, so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [20]. See also per Gummow, Hayne and Crennan JJ in SZATV at [20]). 36 It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-2, 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).


case_text: The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). 36 It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-2, 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).


case_text: The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). 42 In Chen Chi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 ('Chen') at [13] Gleeson CJ, Gaudron, Gummow and Hayne JJ summarised the findings of the Court in Applicant A as follows: '13 It was held in Applicant A that the "common thread" which links "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee" dictates that "a shared fear of persecution [is not] sufficient to constitute a particular social group".' (Footnotes omitted.) 43 In relation to membership of a particular social group, McHugh J said in Applicant A at 259-260: 'Courts and jurists have taken widely differing views as to what constitutes "membership of a particular social group" for the purposes of the Convention. This is not surprising. The phrase is indeterminate and lacks a detailed legislative history and debate. Not only is it impossible to define the phrase exhaustively, it is pointless to attempt to do so. Records of the Convention's preparation, which are legitimate interpretative material under Australian law, reveal that the category of "particular social group" was the last of the enumerated grounds in Art 1A(2) to be added and that it was added with the intention to broaden the reach of the other four grounds. However, nothing in the prior history or the record of the Convention supports the conclusion that the category of "particular social group" was added to provide a safety-net for all persons subject to persecution who did not fall within the other enumerated grounds ...' 44 In addressing the phrase 'particular social group' Dawson J said in Applicant A at 241: '... The adjoining of "social" to "group" suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word "particular" in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group. Nor is there anything which would suggest that the uniting particular must be voluntary. ...' 45 In Applicant A Gummow J expressed his agreement with the following observations of Burchett J in relation to the meaning of persecution in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568: 'Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution.' (see per Gummow J in Applicant A at 284.) 75 It then proceeded to address persecution for reason of membership of a particular social group. The Tribunal said: 'It was submitted that 'the victim of the Maoist atrocities can be classified as a particular social group ...' In the light of Applicant A and Chen , as quoted above, it would seem to me that persons, albeit victims, with a shared fear of persecution could not constitute a particular social group. The Tribunal went on to say: '... Other possible particular social groups arising on the facts are 'business people in Nepal' and 'wealthy Nepalis.''