case_text: In X v Minister for Immigration 116 FCR at 328 [30] the relevant passages sought to be relied on by X had been translated subsequently and were before the Full Court. In a later case Moore J summarised the effect of the authorities: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (affirmed [2004] FCAFC 171 , although this point was not dealt with by the Full Court). He said at [49] that: "Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely [on] it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother's letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable."


case_outcome: applied

case_title: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 ; [2007] HCA 26

case_text: Moreover, in my opinion the absence, even today of any translation of the newspaper articles is significant. There is no evidence to indicate that they had anything in them beyond the point which the tribunal recorded as being made by the appellant, namely that they recorded the existence of Ansar Islam. This provides another reason to refuse relief. The absence of such evidence means that no useful result would ensue from the grant of relief desired by the appellant, since there is no reason to think that a further hearing with translated articles would have provided any further information to which the tribunal could have had regard relevant to its exercise of its functions: see SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 19 The second ground of appeal focused on the way in which the tribunal expressed its reasoning for rejecting the appellant's second factual account. In particular, in its findings and reasons the tribunal reviewed each of the six matters it had raised with the appellant in its letter of 8 November, determining each of them adversely to him. However, in the course of those determinations the tribunal considered the further explanations and statements made by the appellant at the second hearing. And, on a number of occasions, it modified the harsher view it had explained in its letter as the conclusion to which it was tending at that earlier time. For example, at the second hearing the appellant explained that the account he had given in his interview with the delegate of his dealing with police officers in Pakistan was not different to the account that he had given at the first hearing. The tribunal noted that it later had listened to the tape of the interview with the delegate and found that this partly confirmed the appellant's claim of his dealings with police officers. But, the tribunal came to the view that the inherent improbability of that claim meant that it was not satisfied that the appellant had in fact had the experience that he recounted. 20 Likewise, after the second hearing the tribunal modified its earlier view concerning the appellant's claims about Ansar Islam from not being satisfied that the group existed at all, as recorded in its letter of 8 November, to accepting its existence. But it was not satisfied about the appellant's account of his connection with the group. In particular, the tribunal had noted in its letter of 8 November, as I have set out above, that it found it very difficult to accept that the appellant had not fabricated his story about the group to support a refugee claim.


case_outcome: affirmed

case_text: This is an appeal from a decision of the Federal Magistrates Court refusing to grant constitutional writ relief to the appellant in respect of a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa: SZLSW v Minister of Immigration [2008] FMCA 498. The appellant was a Pakistani citizen who hailed from the North West Frontier Province. 2 The appellant arrived in Australia in early September 2007 and was detained at the airport because of irregularities perceived with the manner in which he entered. He made an application for a protection visa later in September 2007 and was assisted by the Refugee Advice and Casework Service in doing so. The service continued to represent him up to the time at which the delegate refused his application. He then applied to the tribunal for a review of the delegate's decision with the assistance of a solicitor migration agent. 3 The tribunal held an initial hearing on 6 November 2007 in which a number of concerns with the claims made by the appellant were discussed. At that hearing the tribunal informed the appellant that it would write to him about issues of concern it had raised with him at the hearing and would give him the option either to provide a written submission or to have another hearing at which he could respond or comment on the issues of concern. On 8 November 2007 the tribunal wrote to the appellant confirming those options. The letter outlined detailed issues under six separate headings relating to issues that concerned the tribunal arising from his evidence at the first hearing. The appellant's solicitor migration agent responded advising the tribunal that the appellant wished to attend a further hearing. The tribunal then invited him to do so.


case_outcome: followed

case_text: The appellant argued that this statement indicated that the tribunal had, in effect, created a reversal of the onus of proof or imposed an onus on the appellant to satisfy it that he had not fabricated an account. He referred to Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 555 F-D where O'Connor, Branson and Marshall JJ noted that under the then provisions of the Act, the tribunal would have been mistaken to adopt a procedure which either placed on an applicant an onus of establishing that he was truthful or was based on the assumption that the purpose of the hearing before it was to discover whether the applicant for review was a truthful person. Undoubtedly, that is still apposite, but the reasons of an administration decision-maker cannot be read in isolation or construed minutely and finely with an eye keenly attuned to the perception of error. Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, said that such reasons are meant to inform. They are not to be scrutinised in over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons have been expressed. Their Honours emphasised that the Court was not to turn a judicial review of the exercise of jurisdiction by an executive decision-maker into a merits based review.


case_outcome: cited

case_title: Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 ; 74 ALJR 405 ; [2000] HCA 1

case_text: In Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423-424 [67]-[70]; [2000] HCA 1 ; 74 ALJR 405 at 417, McHugh J pointed out that it was quintessentially the function of the tribunal to come to a decision about the credibility of an applicant for review. If one took out of context the statement concerning fabrication, that I have quoted in the credibility section of the tribunal's findings and reasons, it may well fall within the criticism noted in Kopalapillai 86 FCR 555 F-G. However, in the context of the reasons as a whole, I am not satisfied that that is a fair or appropriate way to read the tribunal's reasoning on the appellant's credibility.


case_outcome: considered

case_text: In X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319 the Full Court considered a situation in which the tribunal had refused to have regard to an applicant for review's diary records of a particular period because they had not been translated. The majority, Gray and Moore JJ, in separate reasons, discussed the obligation of a decision-maker to have regard to untranslated material put before him or her. Gray J referred to the decision of Wilcox, Whitlam and Marshall JJ in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25] . There the Full Court had noted that the tribunal may be under an obligation to obtain a translation of a particular document which was in a foreign language and whose relevance had been explained to the tribunal. However, in Cabal [2001] FCA 546 at [25] the Full Court held that, in general, the tribunal was not required to translate material in a foreign language or to consider large volumes of material whose relevance was not explained and its failure to do so was not a departure from the process of review mandated by the then provisions of the Act, in particular s 414(1). 12 In X v Minister for Immigration 116 FCR at 328 [30] the relevant passages sought to be relied on by X had been translated subsequently and were before the Full Court. In a later case Moore J summarised the effect of the authorities: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (affirmed [2004] FCAFC 171 , although this point was not dealt with by the Full Court). He said at [49] that: "Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely [on] it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother's letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable."


case_outcome: referred to

case_text: 23 December 2008, I delivered reasons for judgment in this proceeding, published as Australian & International Pilots Association v Qantas Airways Limited (ACN 009 661 901) [2008] FCA 1972. On that occasion, I ordered that the proceeding be listed on a date to be fixed, for further hearing on the outstanding issues referred to in those reasons for judgment. I also directed the parties to bring in minutes of orders reflecting the conclusions reached in the reasons for judgment. The matter has been fixed for hearing today to deal with the questions identified in those reasons for judgment. Those questions were identified at [129] of the reasons for judgment as: When the matter came before me today, counsel for the respective parties provided me with short minutes of order, to which they both consent. The only orders sought are:


case_text: to the first of those issues a number of considerations are relevant. In any event, in the consideration of penalty, there were undoubtedly substantial mitigating circumstances in the present case. An important one is that, at the time when the contraventions occurred, both parties had taken the view that the relevant provisions of the certified agreement known as EBA6 were to be regarded, at least potentially, as non-pertaining provisions, and therefore were to be removed from the succeeding agreement (EBA7) by agreement of the parties, in order to ensure the certification of EBA7. The concern about whether those provisions pertained to the relevant employees of Qantas arose as a result of the judgment of the High Court in Electrolux Home Products Pty Ltd v The Australian Workers Union [2004] HCA 40 (2004) 221 CLR 309. The fact that the applicant, a union, was the effective recipient of a benefit from the operation of those provisions apparently caused both parties to assume that they might be non-pertaining provisions. This resulted in the agreement to remove the provisions from EBA7, to ensure the certification of that agreement. In the event, in my reasons for judgment delivered on 23 December 2008, I held that the provisions were enforceable and that breaches of them had occurred. The breaches occurred in the last days of the operation of EBA6. The employees concerned had already approved by ballot in accordance with the Workplace Relations Act the terms of EBA7, from which the supposed non-pertaining provisions had been removed. Application had been made to the Australian Industrial Relations Commission to certify the new agreement. The hearing of that application had been adjourned at the request of the applicant, with the agreement of the respondent, because the applicant's new office-bearers had just taken office. One of the contraventions, the failure to pay Captain Woods his entitlement to salary calculated at the rate applicable to the president of the applicant under the agreement, was simply the result of neglect. The evidence, and the finding that I made, was that the normal process was to pay in arrears at the end of a future pay period but that was never done in Captain Woods' case. As for the other contraventions, they involved failure to release two pilots from their duties in accordance with the provisions of EBA6, to enable them to attend to the applicant's business. The refusal to release them from duties arose principally from a failure to understand the significance of the expression, "operational requirements," in the relevant provisions and to distinguish operational requirements from inconvenience in managing the pilots' roster. As a consequence, it can truly be said that neither of the contraventions was wilful. Each was explicable and the degree of culpability of the respondent is substantially mitigated by that. As for general deterrence, the mitigating factors are such that little purpose would be served by imposing a financial penalty. It certainly is not the case that, in every situation a party can insist on a construction of a provision of an award or certified agreement, later found to be unsustainable, and avoid the imposition of a financial penalty. Nevertheless there are cases where the adoption of a construction that is fairly open permits a court to say that the imposition of a financial penalty would not be appropriate. The special feature of this case is that both parties at the relevant time had taken the position that the relevant provisions of EBA6 were not legally enforceable, because they were non-pertaining pursuant to the Electrolux judgment. In those circumstances, it seems to me, that no purpose of general deterrence would be served by the imposition of a financial penalty. For those reasons the agreement of the parties that no financial penalty is any longer appropriate falls within the proper range to which the Court should have regard in determining issues of penalties. Accordingly, I propose to impose no financial penalty in respect of any of the relevant breaches. The parties are, of course, agreed as I suggested they needed to be, that the respondent is obliged to pay Captain Woods the amount of his underpayment and interest on that amount. Those orders will be made. As I have also said, neither party seeks to visit the question of costs, so that no order for costs will be made, on the assumption that the general rule applies that a proceeding in a matter arising under the Workplace Relations Act does not attract costs. There remains the question of the declarations. I have in the past taken the view, to which I adhere that it is generally inappropriate, to make declarations that do no more than record the findings or conclusions the Court reaches on issues of fact and law in any particular case. I have recognised in the past that, particularly under the Trade Practices Act 1974 (Cth), there has grown up a practice of making declarations which express findings as to contraventions of various provisions. My own view is that that practice is unfortunate, because the declarations so made do not amount to true declarations of right, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). A true declaration of right provides the parties with a determination of some controversy on which they can base their future relationships. In the present case, the declarations proposed would at least have the effect of expressing the conclusion that the provisions concerned were enforceable at law. Despite Electrolux , they were not non-pertaining provisions, and were therefore binding on the parties and ought to have been complied with, not only in respect of the particular pilots but in respect of all others. For those reasons I am prepared to depart from my usual antipathy towards declarations and to make orders in the terms sought. The orders I make are as follows: The Court declares that: 1. By failing to pay Captain Ian Woods his salary at the rate calculated in accordance with cl 24.2 of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004, in respect of the period from 7 to 15 November 2005, the respondent contravened cl 46.2, coupled with cl 46.6.1 of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. 2. By refusing to release Captain Simon Tuma from his allocated flying duties on 8 November 2005, the respondent contravened cl 45.3.1(a) of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. 3. By refusing to release Captain Ian Smith from his allocated flying duties on 11 November 2005, the respondent contravened cl 45.3.1(a) of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. The Court orders that: The respondent pay to Captain Ian Woods the sum of $1,385.83 (less any applicable tax). The respondent pay to Captain Ian Woods interest on the sum referred to in para 4 above, in the amount of $501.92. 6. Otherwise, the application be dismissed, with no order as to costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 14 May 2009 Counsel for the applicant: Mr S Moore Solicitor for the applicant: AJ Macken & Co Counsel for the respondent: Mr R Kenzie QC with Mr S Meehan Solicitor for the respondent: Blake Dawson Date of Hearing: 27 April 2009 Date of Judgment: 27 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/500.html


case_text: were, and are, no prior findings of any relevant contravention of the certified agreement concerned. During the time that my judgment was reserved in this case, the Federal Magistrates Court of Australia imposed a financial penalty on the respondent, at the suit of the applicant, in AIPA & Anor v Qantas Airways [2008] FMCA 1008 (2008) 176 IR 453. In that proceeding the learned federal magistrate found that the respondent had committed three breaches of clauses of EBA7, unrelated to the clauses of EBA6 that were in issue in the present case. The federal magistrate imposed a penalty in respect of the three breaches regarded as arising out of a single course of conduct, of $5,000 whereas the maximum penalty is $33,000. In doing so, at [84], his Honour expressed the view that the breaches were not particularly severe. They concerned conduct subsequent to the conduct in issue in the present case and the judgment was delivered while judgment in the present case was reserved. The respondent has appealed from the federal magistrate's judgment and it is apparent from the notice of appeal that there is a substantial argument about the proper construction of the provisions concerned. Accordingly, the weight of the findings made by the federal magistrate, in considering parallel conduct by the respondent for present purposes, is minimal. In those circumstances and in the light of the applicant's change of position about seeking financial penalties, it is necessary for me to consider the questions of specific and general deterrence. It is apparent that there is no need for specific deterrence in the present case. There is no indication at all that the respondent has ever had an attitude of turning its back on the relevant provisions of certified agreements. There is no occasion for teaching it the lesson that it must have regard to such provisions at all times and must comply with them. Indeed, on the evidence that emerged in the course of this case, it is undoubtedly the fact that the respondent devotes a substantial amount of its resources to ensuring that it complies with certified agreements on a daily basis.


case_text: In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389, Kirby J said, at 405, speaking of the functions of the Tribunal: 'The tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.' (Footnotes omitted)


case_text: In SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 , von Doussa J said that the Tribunal was not obliged to consider claims that have not been made.


case_text: The Tribunal's duty in respect of claims of this kind was further considered by the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 219 ALR 27 (' NABE '). In that case the Full Court at 44 approved a statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 where his Honour said that: ' 18 The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised a relevant issue that the Tribunal should have dealt with.' 45 The Full Court in NABE went on to say at 44: 'This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.' 46 The appellants' case was based upon a claim of political persecution. Whilst the Tribunal found that a number of threats had been made by particular persons, some of whom were politicians, it found that the motivation for the persecution was a desire to protect 'their own business interests from competition'. There was evidence to support that finding. 47 In any event, the Tribunal found that the threats did not amount to serious harm within the meaning of s 91R of the Act. In view of the fact that the Tribunal rejected the appellants' claim that the senior political figure visited his home and carried out the threats and the attack on his father-in-law, such a finding was open to the Tribunal.


case_text: The appellants have argued that the Tribunal did not 'alert them' or 'canvass fully' the appellants' claimed link between membership of the social group of businessmen and membership of the political entity. However, the Tribunal did not have the responsibility of advancing a case for the appellants: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510; Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437.


case_title: Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437


case_text: The Tribunal's responsibility in the conduct of the hearing was governed by s 422B of the Act. The common law natural justice hearing rule has been excluded by operation of that section. It did not apply in the hearing by the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.


case_title: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62


case_text: Because of the provisions of s 422B of the Act, there was no common law duty of the kind addressed in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411. If I am wrong about that and a common law duty arose, notwithstanding the provisions of s 422B, the duty was discharged because the male appellant was given copies of the 'dob in' letters.


case_text: Section 424A does not apply to country information: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330. For those reasons, s 424A was not breached by the Tribunal. None of the grounds identified by the appellants have been made out.


case_title: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330


case_text: Section 424A is in mandatory terms. A breach of s 424A will constitute jurisdictional error: SAAP & Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. 79 In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.'


case_outcome: distinguished

case_text: Reference was made to a line of cases where the Tribunal had more than one applicant before it and a dependent applicant gave evidence which contradicted or tended to contradict the primary applicant's case. In MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 , the applicant's husband was also an applicant (a dependent applicant) before the Tribunal and gave evidence. Marshall J held that the husband was also an applicant. Section 424A(3)(b) excused the Tribunal from giving the applicant written notice of her husband's evidence. That decision was followed by Young J in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176. The proposition was doubted but not finally decided by Nicholson and Emmett JJ in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13. 80 The authorities are not at one in relation to the Tribunal's obligations under s 424A of the Act. However, this is not a case where there was one hearing at which there was more than one applicant including a dependent applicant. These were separate hearings with separate applicants. In those circumstances, this case can be distinguished from MZWMQ and M47/2004 . Nor is this a case where the applicant asked for a witness' evidence to be received during the hearing. For that reason, the decisions in VBAM of 2002 , Applicant M164/2002, SZECG and SZAQI are also not directly relevant to the circumstances of this case.


case_title: Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176


case_text: Reference was made to a line of cases where the Tribunal had more than one applicant before it and a dependent applicant gave evidence which contradicted or tended to contradict the primary applicant's case. In MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 , the applicant's husband was also an applicant (a dependent applicant) before the Tribunal and gave evidence. Marshall J held that the husband was also an applicant. Section 424A(3)(b) excused the Tribunal from giving the applicant written notice of her husband's evidence. That decision was followed by Young J in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176. The proposition was doubted but not finally decided by Nicholson and Emmett JJ in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13.


case_text: In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.' 80 The authorities are not at one in relation to the Tribunal's obligations under s 424A of the Act. However, this is not a case where there was one hearing at which there was more than one applicant including a dependent applicant. These were separate hearings with separate applicants. In those circumstances, this case can be distinguished from MZWMQ and M47/2004 . Nor is this a case where the applicant asked for a witness' evidence to be received during the hearing. For that reason, the decisions in VBAM of 2002 , Applicant M164/2002, SZECG and SZAQI are also not directly relevant to the circumstances of this case.


case_text: In VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 which was decided before SAAP , Gray J held that there was no obligation on the Tribunal to give notice under s 424A where the Tribunal intended to rely on contradictory evidence of a witness called by the applicant. He held that their evidence was information that the applicant gave for the purposes of the application. That decision is inconsistent with the remarks of Lee J (agreed to by Tamberlin J; Dowsett J dissenting) in the later decision of the Full Court in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Branson J followed that later decision in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733. In that case, Branson J held that the appellant had not given information to the Tribunal by advising the Tribunal that he wanted the Tribunal to take evidence from his father. A different conclusion in relation to the evidence of a witness was arrived at in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653. The applicant's evidence in that case was contradicted by a witness who the applicant asked to be called in a letter written to the Tribunal. Bennett J contrasted that situation where evidence was 'called by the Tribunal as part of its inquisitorial function (cf SAAP)'. She referred to Applicant M164/2002 and said at [24]: 'Accordingly, I do not take Lee J as finding that evidence of a witness called by the applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.'


case_title: SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733


case_title: SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653


case_text: Metcash Trading Limited v Bunn (No 5) [2009] FCA 16 I concluded that there could be no reasonable doubt that Mr Bunn's conduct in publishing the nine allegations contained in three publications particularised in the Statement of Charge was deliberate and that, in making the allegations that he did, he disobeyed the restraint imposed upon him by Order 3.5(c) of Lander J made in this matter on 9 March 2006. I adjourned further consideration of the present motion to permit the parties to put on evidence and make submissions in relation to penalty. The applicant, Metcash, has filed further affidavit material. That affidavit outlines in some detail correspondence and other communications between Metcash and Mr Bunn which it is said were intended to bring home to Mr Bunn the effect of Lander J's orders; such concerns as Metcash had about Mr Bunn's continuing to publish criticisms of it; and its encouragement for him to obtain legal advice. The affidavit further provided some evidence of Mr Bunn's assets, at least as revealed in a property search in the Australian Capital Territory and from Mr Bunn's Statement of Affairs in his bankruptcy. Mr Bunn is an undischarged bankrupt having lodged a debtor's petition on 26 April 2006. Put shortly, what Metcash now seeks in its submissions is that Mr Bunn be ordered: (1) to pay a fine in the sum of not less than $5,000; (2) to pay the applicant's costs of the contempt application on an indemnity basis; and (3) provide a written apology to the Court for publishing what are described as the Contempt Publications. Mr Bunn has filed no affidavit and has not provided any written submissions in this matter. The character that I ascribed to Mr Bunn's contempt in my earlier reasons was as follows at [47]: ... I am not satisfied that Mr Bunn consciously and deliberately breached the order. His conduct nonetheless has been censurable. While he may not have understood the true meaning of Order 3.5(c) and hence that his conduct could constitute a breach of that order: cf Microsoft Corporation, at 143; his ignorance could provide him with no ready vehicle for exculpation. He knew he was bound by Court orders and that they precluded him from publishing or republishing certain allegations. After his exchange with Lander J on 28 February he had reason to know that his understanding of the meaning and effect of Orders 3.2 and 3.5(c) was quite imperfect. If he was to continue to publish matter critical of the Metcash companies without acting in breach of the orders, it was necessary for him to have an informed understanding of what the orders prohibited. Against that background, it was hazardous for him obdurately later to reject without inquiry the assertions about the orders made by the applicants' solicitors. Mr Bunn needed, but on the material before me did not obtain, reasonable and reasoned advice. Put shortly, he had been put on inquiry in circumstances in which it quite properly can be said he assumed the risk that his conduct might be found to be in breach of the orders. His so acting may well be a matter appropriately to be taken into account in relation to any penalty imposed on him. It clearly is the case as Lander J has observed that Mr Bunn has waged a campaign against Metcash which he blames for the collapse of his own business. Even after my decision on 20 January 2009 he again published a further edition of "T.I.G.A.". In this edition he discussed my reasons and order and the terms of Lander J's interim injunction. The publication included in part the following: Upon Metcash's application to the Federal Court, the Honourable Justice Finn, has found that Peter Bunn is in contempt of those orders, due to 3 (out of 56) TIGA publications, (07/1-2007; 10/1-2007; and 12/2-2007) for which Bunn is responsible. The fact of the matter is that those 3 publications, were either quoting other people, or discussing Metcash's reports as to profit increases, shareholdings, or discussing possible outcomes of Metcash's actions. Justice Finn has made it clear that Bunn, or any publication for which he takes responsibility for, cannot publish any matter which can be implied that Metcash actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal, which ultimately results in the fact that even if Metcash, or its CEO, Andrew Reitzer, make public statements, or other people make public statements, that imply such (ie Metcash puts up their fees to independent retailers), Bunn is not permitted, under the interim injunction, to publish such facts. This means that Bunn is even injucted from publishing certain statements made by Mr Andrew Reitzer himself, during the ACCC hearing into grocery prices, which could be considered that Metcash actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal !!, nor is Bunn permitted to republish statements made by other people regarding Metcash's conduct !! Such an interim injunction flies in the face of free speech, and certainly beggars belief as to the desperation of Metcash to hide its conduct, instead of standing in the public forum and explaining and justifying its own actions which, obviously, Andrew Reitzer and Metcash are not, or cannot, do !! Bunn has stated that he will respect the penalty that the Federal Court issues, but of course Metcash will have to deal, eventually, before the Court, with having to justify the facts of their original claims to the Federal Court so as to obtain the said interim injunction. Metcash has asked me to draw from this a picture of a cunning individual who uses the terms of the injunction itself to in effect publish what the injunction prohibits. This it is contended reveals his culpable frame of mind. For my own part, while the publication again manifests the strength of his hostility to Metcash, it does in my view do no more than, in somewhat inflammatory language, explain the terms of the order and in his view its possible reach. There is, it should be said, a very real question, as Lander J indicated to Mr Bunn over three years ago, as to whether the terms of Order 3.5(c) are probably "too wide". I do accept what Mr Bunn has said that he will respect the penalty imposed by the Court and he reiterated in the penalty hearing before me that he respects the Court and its orders. I do not doubt the genuineness of what he says. Further, I should say I do not regard Mr Bunn's actions as deliberately challenging the legitimacy or justice of decisions and orders made by this Court. A fair understanding of the matter would suggest they had more to do with the lamentable state of the relationship of the parties and their mutual mistrust which clearly are contributing significantly to the glacial progression of the matter towards judicial resolution. (3) The nature and circumstances of the contempt I have outlined this in detail in my earlier reasons and simply adopt what I there said. (4) The Contemnor's culpability This, as I have indicated in the paragraph quoted above, is a matter that has concerned me. I do not consider that Mr Bunn has acted contumaciously. Nonetheless, I consider his conduct censurable. In the circumstances a reasonable person would have been put on inquiry as to the proper meaning of Lander J's orders given what Lander J said to Mr Bunn on 28 February 2006, the communications made to him by Metcash's legal advisers and, at least by his own admission, what he said was the advice of his pro bono lawyers when he discontinued his motion to have Order 3.5(c) varied. It is for this reason, whatever his misapprehension about the meaning of the order, he cannot rely upon that misapprehension to exculpate himself from the imposition of a fine. (5) The deterrent effect It is now clear at last from the publication made after my earlier judgment, that Mr Bunn appears clearly to understand what the order means. It equally seems now to be apparent to him why Lander J ventured the view that Order 3.5(c) may be too wide. Be this as it may and in light of Mr Bunn's comments to me during the hearing, I do not apprehend that he will again act in breach of the order notwithstanding the strength of his animus against Metcash as again revealed in his 2009 T.I.G.A. publication. I am equally satisfied he is well aware of the severe consequences that are likely to ensue should he so act again. Conclusion I am satisfied that in all the circumstances, while a penalty by way of fine should be imposed upon Mr Bunn, it ought not be one of significant magnitude. I have determined that a fine of $2,000 ought be imposed upon him. This, I consider, is both appropriate in the circumstances and reflects my appreciation of the relative gravity of the contempt. Costs


case_text: now to the issue of penalty, the applicable principles are not in dispute and it is convenient to deal with them under the following headings which are drawn from those used by Merkel J in Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 225 ALR 541 ; see also Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 133 FCR 279 at [16] - [17] . (1) The Contemnor's personal circumstances


case_title: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 133 FCR 279


case_text: seeks an order for costs in its favour on the motion on an indemnity basis, such costs to be payable forthwith. Initially I was minded to reserve the question of costs. Notwithstanding that it raises a discrete question in the principal proceedings unrelated to the issue awarding final determination, it appeared to me that it was so enmeshed in the circumstances and manner of conduct of the proceeding itself that a wider view of it should be taken when determining the proper incidence of costs. However, this is not a course that is open to me. Notwithstanding that in form the contempt proceeding is an interlocutory one, there is authority in this Court for the view that an order for costs on a motion charging contempt is a final and not an interlocutory order: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 and also Nelmac Pty Ltd v Construction, Forestry, Mining and Energy Union [1999] FCA 929. Metcash, as an abundance of caution, has also asked that I make an order that the costs ordered to be paid be payable forthwith. A like course was taken by Lehane J in the Real Tech case.


case_title: Nelmac Pty Ltd v Construction, Forestry, Mining and Energy Union [1999] FCA 929


case_text: is well accepted, the power to award costs in all proceedings is discretionary. Nonetheless, as is occasionally observed, it is "common or usual practice" to order that the contemnor pay costs on an indemnity basis: see eg Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 86-87. However, there is no general principle or rule of law in contempt cases to this effect: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 at [6] ; and see generally Dal Pont, Law of Costs (2 nd ed, 2009) at [16.65]. As was observed by Moore J in the BHP Steel case at [8] "in a significant number of cases where indemnity costs have been awarded in contempt proceedings, there is a link between the award of indemnity costs and the penalty for contempt. Costs can be explicitly awarded in substitution for or in lieu of a monetary or other penalty". In the present matter as I have indicated I intend to impose what I regard as being a reasonable and adequate pecuniary penalty. I take that matter into account in my consideration of an appropriate costs order. While I have indicated that Mr Bunn's conduct is serious, I do not however regard this matter as one involving significant public interests. It is very much a matter inter partes . In saying this I should acknowledge that Metcash ultimately had to resort to contempt proceedings to secure compliance with a Court order. I nonetheless do not consider the present to be an appropriate proceeding in which to make an indemnity order notwithstanding that one justification advanced for such an order is that the bringing of such proceedings should not result in a party being further prejudiced: see eg Concrete Constructions , at 86. The present is a complex litigation in which there is quite obvious antagonism between the parties. I mean no disrespect in saying that Metcash has fought the matter with considerable vigour as is reflected in the volume of material that has been placed before me. I am not satisfied that, in addition to paying a fine, Mr Bunn should properly be called upon to pay the full costs of the considerable forces arrayed, and of the material presented, against him. An appropriate order in the circumstances in my view would be that the usual order be made and that Mr Bunn pay Metcash's costs on a party and party basis and that the costs be taxable forthwith. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 27 March 2009 Counsel for the Applicants: Mr J Wells QC and Mr I Robertson SC Solicitor for the Applicants: Kelly & Co The Respondent appeared in person. Date of Hearing: 24 March 2009 Date of Judgment: 27 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/266.html


case_text: is well accepted, the power to award costs in all proceedings is discretionary. Nonetheless, as is occasionally observed, it is "common or usual practice" to order that the contemnor pay costs on an indemnity basis: see eg Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 86-87. However, there is no general principle or rule of law in contempt cases to this effect: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 at [6] ; and see generally Dal Pont, Law of Costs (2 nd ed, 2009) at [16.65]. As was observed by Moore J in the BHP Steel case at [8] "in a significant number of cases where indemnity costs have been awarded in contempt proceedings, there is a link between the award of indemnity costs and the penalty for contempt. Costs can be explicitly awarded in substitution for or in lieu of a monetary or other penalty". In the present matter as I have indicated I intend to impose what I regard as being a reasonable and adequate pecuniary penalty. I take that matter into account in my consideration of an appropriate costs order.


case_text: applicant says that in "timing" cases such as those presented by the 1992 and 1994 years, a taxpayer can object to an assessment on the basis that it is too low. Reliance is placed on Henderson v Federal Commissioner of Taxation (1970) 119 CLR 612 at 646 per Barwick CJ, with whom the other members of the Court agreed. The applicant points out that objections in relation to the 1992 and 1994 years are before the Court in relation to an issue other than those involved in this application to amend. The amendment application is filed in all proceedings on foot, including those for the 1992 and 1994 years. Section 67(2) of the Act empowers the Commissioner to amend an assessment at any time to give effect to a decision on a review or appeal. If the applicant is successful in its contention that amounts should be excised from its assessable receipts in the 1991, 1993, 1995 and 1996 years, the Commissioner will in my view have power under s 67(2) to amend the assessments for 1992 and 1994 by increasing the assessable receipts for those years. The Commissioner raised a technical obstacle to the course described in [36]. This was that as matters stand at present there is simply an application for leave to add an additional ground. Until the objections are actually amended, so that the issue for the 1992 and 1994 years are in fact before the Court, the prejudice to the Commissioner cannot be avoided. In order to assuage the Commissioner's concern, Counsel for the applicant proffered an undertaking that the issue will be brought before the Court so that an order under s 67(2) can be made. I accept that undertaking.


case_text: Commissioner's complaint is as to the unexplained delay between the applicant's receipt of the 1997 assessment in August 2000 and Mr Leyden's discovery in May 2007. It is true, as the Commissioner maintains, that as an organisation (ie apart from Mr Leyden's explanation), the applicant has been guilty of serious delay. However, when Mr Leyden discovered the true position, he acted promptly to alert the Commissioner to the "new point" and seek his consent to raise the new grounds. As has often been said, an application for leave to amend is not the occasion for punishing a party for its delay in making the application. See Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 189 CLR 146 at 155. This is very complicated litigation with many difficult issues spread over several tax years. While the delay is unfortunate, it is not of an order that should prevent all live issues between the parties being resolved in the one proceeding. I will grant leave to add the grounds the subject of pars 1 to 3 of the proposed minutes of orders handed up by the applicant. If the Commissioner seeks a more formal undertaking than that noted at [37], attention should be given to its form. I will also make the orders sought in pars 4 and 5 of the draft minutes. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 27 March 2009 Counsel for the Applicant: J De Wijn QC, M Flynn and S Stewart Solicitors for the Applicant: Allens Arthur Robinson Counsel for the Respondent: G Davies QC and A Pound Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 February 2009 Date of Judgment: 27 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/272.html


case_text: A question then arises as to whether a substantial purpose among any other purpose of carrying on the commercial activities of Australia Post satisfies s 7(4) of the FOI Act for the purposes of Part II of Schedule 2 thus rendering Australia Post exempt from the operation of the FOI Act in relation to the list for the purposes of s 7(2) of the FOI Act. In Mikasa (NSW) Pty Limited v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617, the High Court was called upon to consider the proper construction for the purposes of s 66B(2) of the Trade Practices Act 1965 1971 (Cth) of the phrase 'for the reason that' in the context of a provision of that Act in terms that 'a person (in this section called 'the supplier') engages in the practice of resale price maintenance if ... (d) the supplier withholds the supply of goods to a second person for the reason that the second person [has engaged in a particular conduct including withholding supply of goods]'. Although the context will, of course, influence the construction to be adopted in any particular given case having regard to the provisions of the Act as a whole, Barwick CJ made this observation at page 634: In my opinion, it is not correct to so emphasise the participle in the phrase "for the reason that" as to interpret the paragraph as requiring the withholding of the supply to be for one reason only. In my opinion, if the likelihood that the would be purchaser would sell at less than the specific price is an operative reason for withholding that supply, the supplier engages in the practice of resale price maintenance, however many other reasons the supplier may in fact have for not supplying the goods; it is enough if it is an operative reason, that is to say, a substantial reason in the totality of reasons for the withholding of supply. [emphasis added] 45 The Trade Practices Act 1974 (Cth) (as amended) ultimately adopted provisions which expressly dealt with consequences in terms of the prescriptions in the Act of conduct engaged in for a purpose and whether, in the case of multiple purposes, the prescribed purpose was a substantial purpose. The remarks of the Chief Justice are directed to the general import of the construction to be given to the phrase 'for the reason that'. In Mikasa , Walsh J also took the view that the phrase 'for the reason that' ought to be construed to mean 'a substantial and operative reason' for withholding supplies (page 646). At page 658 of Mikasa , Stephen J said this: ... common experience suggests that decisions (at least of that nature) have lying behind them a process of decision-making involving the conscious or unconscious weighing of numerous factors, each no doubt of varying weight but each distinct from the others. In such a context each substantial and proximate reason will in my view answer the description of "the reason" in this paragraph. [emphasis added]


case_text: In National Mutual Life Association of Australia Limited v The Commissioner of Taxation [1970] HCA 51 ; (1970) 122 CLR 13 ( 'National Mutual' ), Gibbs J considered the meaning of the phrase 'for the purpose of producing assessable income' in s 88(1) of the Income Tax and Social Services Contribution Assessment Act 1936 1963 (Cth) in a provision which said, 'where a taxpayer has paid any premium in respect of land, premises or machinery used for the purpose of producing assessable income and in the year of income [certain events occurred] a proportionate part of the amount of that premium ... shall be an allowable deduction'. Gibbs J at page 18 said this: The question then is whether the words "used for the purpose of producing assessable income" in s 88(1) and (2) on their proper construction apply to land ... only when it is solely used or chiefly used for the purpose of producing assessable income. The section itself contains no words restricting its operation in that way. If the provisions are literally construed, they apply when the land is used for the purpose of producing some assessable income even though it is used for other purposes as well. No doubt the application of the section might be excluded if the use of the land for the purpose of producing assessable income was so insubstantial as to call for the application of the principle de minimis non curat lex , but it is unnecessary to consider that situation ... [emphasis added] 47 In National Mutual , at page 22, Gibbs J said this: I conclude that the words of s 88 should be given the broad meaning which, in their ordinary and natural sense, they are capable of bearing, and should be understood as including a reference to land which has in fact been used for the purpose of producing assessable income whether or not that was the main use of the land. [emphasis added]


case_title: Hook v Rolfe (1986) 7 NSWLR 40

case_text: A similar position was adopted in Hook v Rolfe (1986) 7 NSWLR 40 per Hope, Glass and Samuels JJA at pp 44 and 45. In Secretary to The Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 , Buchanan JA with whom Ashley JA and Smith AJA agreed considered the construction to be given to a provision which said, 'a document is an exempt document if it is (b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet; (ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet' (s 28(1) Freedom of Information Act 1982 ). At [13], Buchanan JA said this: The purpose identified in the relevant paragraph of s 28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in s 3 appear to me to warrant construing the rights conferred by the Act liberally and the exceptions narrowly, in my view as long as a purpose meeting the statutory description was causative in the sense that but for its presence, "the power would not have been exercised" it need not have been the sole purpose for the preparation of the document in question. [emphasis added]


case_title: Secretary to The Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11


case_text: See also on the question of the construction of the term, 'in the course of and for the purposes of', Khoon's Official Assignee v Ex Liong Hin Ltd [1960] A.C. 178 at 191 per Lord Denning, Lord Jenkins and the Rt. Hon. L.M.D. de Silva and on the question of approaches to the test of the validity of an act 'when the law makes the object, view or purpose of a man or of a body of men', an element of that validity, Mills v Mills [1938] HCA 4 ; (1938) 60 CLR 150 at 185 and 186 per Dixon J.


case_text: First, in my view Mr Bickford correctly stated the process by which the Tribunal was required to reach its decision: namely to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. This approach is consistent with the approach required of the Tribunal in reaching other decisions under the Migration Act : cf, for example, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 and Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. The appellant does not bear an onus to satisfy the Tribunal that the fee should be waived (cf Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340 at 351) however it is clear that it is for the appellant to advance whatever evidence or argument she wishes to advance in support of her claim: cf Abebe 197 CLR at 576, cf re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] .


case_text: Fourth, I agree with the submission of Mr Bickford that it is yet to be established whether a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia: Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211 at [28] . (I note further with respect to this point that the High Court refused leave to appeal from the decision in Andary [2003] FCAFC 211: Andary v Minister for Immigration and Multicultural Affairs [2004] HCA Trans 242). In any event, the finding of the Federal Magistrate that the decision of the Tribunal delegate was one open to him in the circumstances (at [25]) demonstrates that, in the view of Jarrett FM, the decision was not "unreasonable". Given that in my view the Tribunal has taken into account relevant considerations in reaching its decision, and has made its decision based on findings supported by probative material, I am not persuaded that his Honour was incorrect.


case_title: Andary v Minister for Immigration & Multicultural Affairs [2004] HCA Trans 242


case_text: In relation to the first ground of appeal, in summary the appellant submitted the following: • in relation to the reason of the decision-maker that the appellant did not provide any evidence of her partner's financial situation: o all the evidence before the decision-maker indicated that the appellant was estranged from her partner and that her partner was not giving her any financial support at all o the delegate, when making the decision to refuse the visa, noted that the appellant advised at interview that she received no financial assistance from her partner, and that the appellant's partner also admitted that he did not financially support the appellant o there was evidence from Centrelink that the Special Benefit paid to the appellant was income tested and only payable to non-residents in circumstances where they have proven extreme hardship and/or have been abandoned by their resident spouse o her partner's financial situation was an irrelevant consideration in circumstances where there was no evidence that the partner had supplied any money to the appellant. • in relation to the reason of the decision-maker that the appellant had not submitted enough evidence to support a fee waiver request, for example bank statements for the last six months, any credit card statements, evidence of rent paid and any expenses beyond regular living expenses: o irrespective of the decision-maker's policy of requiring applicants to provide, inter alia , bank statements for the last six months, it does not follow that the failure to provide such bank statements can be a relevant consideration unless the decision-maker concludes that the appellant is attempting to mislead the decision-maker o where the only evidence is that the appellant is receiving a Special Benefit and has no money in her bank account, then the failure to provide bank statements for the last six months is an irrelevant consideration. It is not possible for the decision-maker to then conclude that the payment of the fee had not caused nor was likely to cause severe financial hardship o where the appellant does not have a credit card, the failure to provide a credit card statement could not lead to the conclusion that the payment of the fee had not caused nor was likely to cause severe financial hardship o the appellant did provide evidence of rent paid in that she provided her tenancy agreement which set the rent for her premises at $135 per week o in relation to whether the appellant had "any expenses beyond regular living expenses", the uncontested evidence is that the appellant was receiving a Special Benefit of $512 per fortnight, and that she had provided a breakdown of her expenses which left no money available for other expenses. • in relation to the reason of the decision-maker concerning the indication by the appellant that she intended to start work on 18 December 2004: o the evidence indicated that the appellant was a low-skilled worker o her letter to the Tribunal stated "I will start working on18/12/04 with Ford Recruitment..." o the only inference that could be drawn from that statement was that she had approached a recruitment agency and could be offered work o the possibility of obtaining low skilled work in the future cannot be a relevant consideration to determine if the payment of $1,400 in one lump sum could cause severe hardship to the appellant. • the Tribunal failed to perform its statutory function under reg 4.13(4) Migration Regulations and as a result its decision was in excess of jurisdiction because: o once an application for a fee waiver is made the decision maker has to make a decision on whether reg 4.13(4) applies o the decision maker here made no factual findings on which to base the decision o the Tribunal made no adverse finding of credit o the facts before the Tribunal were that the appellant had a bank account with $1.00, was on a Special Benefit, and was not receiving support from her partner o it was accepted by the Department that the appellant was living under proven extreme hardship and/had been abandoned by her resident spouse o there was no evidence supporting a different conclusion. • the decision was unreasonable in the sense explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 223-234 • the power to waive the filing fee is given to the "Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar". There is no evidence that the Tribunal member was duly authorised. 22 In summary the first respondent submitted the following: • it is yet to be established whether or not a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia. In any event, the Federal Magistrate was satisfied that the conclusion reached by the Tribunal officer was a view which was reasonably open. This is correct and there is no prospect of Wednesbury unreasonableness, even assuming that Wednesbury unreasonableness does provide a separate ground of review • the primary submissions of the appellant as to the alleged failure of the Tribunal to take into account a relevant consideration, or taking into account an irrelevant consideration which it was bound not to take into account, is in reality an attack on the merits of the decision. There is no error of law, let alone a jurisdictional error, in making a wrong finding of fact. It is not the function of a court to substitute its own decision for that of the administrator by exercising a discretion that the legislature has vested in the administrator: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-40 • the evidence of the estranged partner's financial contribution was clearly a relevant consideration in the context in which the decision-maker was making his decision. The appellant had applied for a Partner Visa based upon her de facto relationship with the estranged partner • it is permissible for the Tribunal to develop a form which sets out the matters it regards as relevant, provided the Court is satisfied that they are not clearly irrelevant • the task of the Tribunal's delegate on the application of the appellant was to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. The findings made by the Tribunal's delegate were not only reasonably open on the evidence presented to him but were findings which he was required to make. The appellant's submission to the contrary is without foundation • whether the decision is a "good" decision or not is not the point - the question is whether it is officiated as a jurisdictional error • the facts of this case are not similar to those in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court held that the Tribunal had disregarded documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated • the evidence of the estranged spouse's financial contribution was clearly a relevant consideration in the context of an application for a Partner Visa based on a de-facto relationship with the estranged spouse • there is no statutory obligation to notify the appellant in any particular way, and no suggestion that the letter was not sent to the appellant's authorised recipient at the correct address. Although Mr Donohue may have been the "authorised officer" in relation to making the decision within the Regulations, Mr Hajaj was authorised to send the letter containing the decision. Nothing turns on the fact that the name "Manal Hajaj" appeared above "authorised officer" in letter to appellant • in relation to the form of notification of the Tribunal's decision to the appellant, Mr Bickford relied on the decision of Kiefel J in Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 817 where the applicant was before the Tribunal. In that case, although the applicant had previously been represented by solicitors, the hearing was conducted in the presence of the applicant, her brother and an interpreter. The Tribunal attempted to contact the applicant several days after the hearing to inform her of the decision, but was advised by the solicitors that they no longer acted for the applicant, and gave the Tribunal the last known telephone number and address of the applicant. It appears that the Tribunal contacted the applicant's brother by telephone and advised him orally of the decision on 21 August 2001. The applicant claimed that she was not notified of the decision until almost four months later. Kiefel J held that the applicant's brother was not her representative, and that advice to the applicant's brother was not notification to the applicant within the meaning of s 368D of the Migration Act . The applicant was first notified of the decision four months later, when she herself received a copy of the decision of the Tribunal, and that time began to run for an appeal from that point. However her Honour also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, and held that the form of notification did not invalidate the actual decision of the Tribunal itself, because it did not follow either expressly or impliedly from construction of the Migration Act that such a consequence would follow (at [11]) • the significance of the decision of the Full Court in Braganza [2001] FCA 318 ; 109 FCR 364 is that in that case their Honours held that where an application for review of the Minister's decision and a request for fee waiver are made within the period prescribed by s 347(1) Migration Act , the Tribunal had jurisdiction to consider the application for review provided that the application to set aside the Minister's decision is valid if made within the prescribed period and the fee is eventually paid or paid within a reasonable time after the waiver application is rejected (in particular at 375). 30 Fourth, I agree with the submission of Mr Bickford that it is yet to be established whether a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia: Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211 at [28] . (I note further with respect to this point that the High Court refused leave to appeal from the decision in Andary [2003] FCAFC 211: Andary v Minister for Immigration and Multicultural Affairs [2004] HCA Trans 242). In any event, the finding of the Federal Magistrate that the decision of the Tribunal delegate was one open to him in the circumstances (at [25]) demonstrates that, in the view of Jarrett FM, the decision was not "unreasonable". Given that in my view the Tribunal has taken into account relevant considerations in reaching its decision, and has made its decision based on findings supported by probative material, I am not persuaded that his Honour was incorrect.


case_text: Finally, I note again that it is for the appellant to make her case for waiver of the prescribed fee. While it is necessary that the Tribunal's decision be based on findings supported by probative material, or inferences of fact which can reasonably be drawn from such findings of fact (cf Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 367), as correctly observed by Jarrett FM a finding of fact by the Tribunal against the weight of the evidence (as submitted by the appellant) does not constitute an error of law, let alone jurisdictional error. The material sought by the Tribunal was probative material upon which it would make decisions, and the appellant was on notice from the contents of the application form that the Tribunal placed importance upon receiving that documentary evidence. It is perhaps not surprising therefore that failure to provide relevant material as sought by the Tribunal - even if in the view of the appellant the material would not have added anything to what she had already said in the application form - contributed to a factual scenario where the Tribunal did not achieve a state of satisfaction which favoured the claim of the appellant. Irrespective whether the appellant can substantiate her contention that the facts of this case clearly indicate suggest that financial hardship would be occasioned to the appellant by payment of the fee - and indeed in my view it appears that the appellant was in fact in such financial circumstances that the payment of the fee would cause her severe financial hardship - the fact remains that review of decisions of the Tribunal is limited to questions of jurisdictional error, and not review of the merits of the decision. Second ground of appeal 32 Migration reg 4.13(4) requires a decision as to waiver of the prescribed fee by, inter alia , an "officer of the Tribunal authorised in writing by the Registrar". The appellant tendered material from which it was clear, and does not appear now to be in contention, that Mr AV Donohoe is such an authorised officer for the purposes of reg 4.13(4). The letter to the appellant was signed by Mr Manal Hajaj, who is not so authorised under reg 4.13(4). I note from exhibit A1, being a document entitled "Fee Waiver Recommendation" dated 15 December 2004, that: • Mr Hajaj was a member of the "Fee Waiver & Priority Team" in the Tribunal • he had recommended to Mr Donohoe that the review fee for the appellant not be waived for reasons which were identical to those communicated to the appellant by letter from the Tribunal dated 28 January 2005 and • on 28 January 2005 Mr Donohoe accepted without qualification Mr Hajaj's recommendation and reasons by marking "Accepted" and signing the document containing Mr Hajaj's recommendation and reasons. 33 It is clear in these circumstances that a decision was made by an officer authorised within the meaning of reg 4.13(4) - namely Mr Donohoe - that the prescribed fee not be waived in favour of the appellant.


case_title: Braganza v Minister for Immigration & Multicultural Affairs [2001] FCA 318 ; (2001) 109 FCR 364

case_text: In relation to the second ground of appeal, which was added at the hearing, Mr Boccabella for the appellant submitted in summary as follows: • in Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 ; (2001) 109 FCR 364, the Full Court held that, provided an application for waiver of a prescribed fee had been made within the prescribed period, the Tribunal could hear an application for review even if the waiver of the prescribed fee was refused • the decision not to waive the prescribed fee was actually made by a person called Mr Donohue rather than Mr Manal Hajaj (who was identified as the Authorised Officer on the letter from the Tribunal dated 28 January 2005) • no document signed by Mr Donohue and notifying the appellant of the decision not to waive the prescribed fee was actually sent by the Tribunal to the appellant • documents indicating that Mr Donohue was the actual decision maker were not disclosed to the appellant until the day of the hearing • the Tribunal was required to send out a letter under the authority of an authorised officer and the appellant then had 14 days to decide whether she could meet the fee waiver or not (TS p 11 ll 35-49 and p 12 ll 1-19) • it is not possible to tell from the document on which the actual decision-maker, Mr Donohue, indicated his decision, the reasons for that decision. First respondent's submissions 22 In summary the first respondent submitted the following: • it is yet to be established whether or not a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia. In any event, the Federal Magistrate was satisfied that the conclusion reached by the Tribunal officer was a view which was reasonably open. This is correct and there is no prospect of Wednesbury unreasonableness, even assuming that Wednesbury unreasonableness does provide a separate ground of review • the primary submissions of the appellant as to the alleged failure of the Tribunal to take into account a relevant consideration, or taking into account an irrelevant consideration which it was bound not to take into account, is in reality an attack on the merits of the decision. There is no error of law, let alone a jurisdictional error, in making a wrong finding of fact. It is not the function of a court to substitute its own decision for that of the administrator by exercising a discretion that the legislature has vested in the administrator: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-40 • the evidence of the estranged partner's financial contribution was clearly a relevant consideration in the context in which the decision-maker was making his decision. The appellant had applied for a Partner Visa based upon her de facto relationship with the estranged partner • it is permissible for the Tribunal to develop a form which sets out the matters it regards as relevant, provided the Court is satisfied that they are not clearly irrelevant • the task of the Tribunal's delegate on the application of the appellant was to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. The findings made by the Tribunal's delegate were not only reasonably open on the evidence presented to him but were findings which he was required to make. The appellant's submission to the contrary is without foundation • whether the decision is a "good" decision or not is not the point - the question is whether it is officiated as a jurisdictional error • the facts of this case are not similar to those in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court held that the Tribunal had disregarded documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated • the evidence of the estranged spouse's financial contribution was clearly a relevant consideration in the context of an application for a Partner Visa based on a de-facto relationship with the estranged spouse • there is no statutory obligation to notify the appellant in any particular way, and no suggestion that the letter was not sent to the appellant's authorised recipient at the correct address. Although Mr Donohue may have been the "authorised officer" in relation to making the decision within the Regulations, Mr Hajaj was authorised to send the letter containing the decision. Nothing turns on the fact that the name "Manal Hajaj" appeared above "authorised officer" in letter to appellant • in relation to the form of notification of the Tribunal's decision to the appellant, Mr Bickford relied on the decision of Kiefel J in Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 817 where the applicant was before the Tribunal. In that case, although the applicant had previously been represented by solicitors, the hearing was conducted in the presence of the applicant, her brother and an interpreter. The Tribunal attempted to contact the applicant several days after the hearing to inform her of the decision, but was advised by the solicitors that they no longer acted for the applicant, and gave the Tribunal the last known telephone number and address of the applicant. It appears that the Tribunal contacted the applicant's brother by telephone and advised him orally of the decision on 21 August 2001. The applicant claimed that she was not notified of the decision until almost four months later. Kiefel J held that the applicant's brother was not her representative, and that advice to the applicant's brother was not notification to the applicant within the meaning of s 368D of the Migration Act . The applicant was first notified of the decision four months later, when she herself received a copy of the decision of the Tribunal, and that time began to run for an appeal from that point. However her Honour also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, and held that the form of notification did not invalidate the actual decision of the Tribunal itself, because it did not follow either expressly or impliedly from construction of the Migration Act that such a consequence would follow (at [11]) • the significance of the decision of the Full Court in Braganza [2001] FCA 318 ; 109 FCR 364 is that in that case their Honours held that where an application for review of the Minister's decision and a request for fee waiver are made within the period prescribed by s 347(1) Migration Act , the Tribunal had jurisdiction to consider the application for review provided that the application to set aside the Minister's decision is valid if made within the prescribed period and the fee is eventually paid or paid within a reasonable time after the waiver application is rejected (in particular at 375).


case_text: In my view these considerations are relevant to the decision of the Tribunal for the reasons explained by Jarrett FM in his Honour's decision. I have very little to add to the reasons of Jarrett FM in this regard, other than to note: • it is reasonable for the Tribunal to state in the application form to be completed by the appellant the material it requires and upon which it will base a decision (indeed failure to so indicate could itself constitute procedural unfairness: cf David Jonathon Walsh v Mike Garrett [1998] 473 FCA per Finn J). The documents specified in the application form were referable to considerations the Tribunal could relevantly take into account in making its decision, as explained by Jarrett FM • I do not accept the submission of Mr Boccabella that it does not follow that the failure to provide such bank statements can be a relevant consideration unless the decision-maker concludes that the appellant is attempting to mislead the decision-maker. As explained by Jarrett FM, the amount of money the appellant has had in her bank accounts both at and prior to the date of application for waiver is relevant to the decision whether payment of the fee would cause her financial hardship • I note the submission of the appellant that she had no credit card, and that a failure to provide a credit card statement could not lead to the conclusion that the payment of the fee would not cause her financial hardship, however at best any error of the Tribunal in relation to this issue is an error of fact which would not of itself constitute a jurisdictional error of the Tribunal in reaching its decision in these circumstances: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76.


case_title: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340


case_text: In summary the first respondent submitted the following: • it is yet to be established whether or not a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia. In any event, the Federal Magistrate was satisfied that the conclusion reached by the Tribunal officer was a view which was reasonably open. This is correct and there is no prospect of Wednesbury unreasonableness, even assuming that Wednesbury unreasonableness does provide a separate ground of review • the primary submissions of the appellant as to the alleged failure of the Tribunal to take into account a relevant consideration, or taking into account an irrelevant consideration which it was bound not to take into account, is in reality an attack on the merits of the decision. There is no error of law, let alone a jurisdictional error, in making a wrong finding of fact. It is not the function of a court to substitute its own decision for that of the administrator by exercising a discretion that the legislature has vested in the administrator: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-40 • the evidence of the estranged partner's financial contribution was clearly a relevant consideration in the context in which the decision-maker was making his decision. The appellant had applied for a Partner Visa based upon her de facto relationship with the estranged partner • it is permissible for the Tribunal to develop a form which sets out the matters it regards as relevant, provided the Court is satisfied that they are not clearly irrelevant • the task of the Tribunal's delegate on the application of the appellant was to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. The findings made by the Tribunal's delegate were not only reasonably open on the evidence presented to him but were findings which he was required to make. The appellant's submission to the contrary is without foundation • whether the decision is a "good" decision or not is not the point - the question is whether it is officiated as a jurisdictional error • the facts of this case are not similar to those in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court held that the Tribunal had disregarded documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated • the evidence of the estranged spouse's financial contribution was clearly a relevant consideration in the context of an application for a Partner Visa based on a de-facto relationship with the estranged spouse • there is no statutory obligation to notify the appellant in any particular way, and no suggestion that the letter was not sent to the appellant's authorised recipient at the correct address. Although Mr Donohue may have been the "authorised officer" in relation to making the decision within the Regulations, Mr Hajaj was authorised to send the letter containing the decision. Nothing turns on the fact that the name "Manal Hajaj" appeared above "authorised officer" in letter to appellant • in relation to the form of notification of the Tribunal's decision to the appellant, Mr Bickford relied on the decision of Kiefel J in Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 817 where the applicant was before the Tribunal. In that case, although the applicant had previously been represented by solicitors, the hearing was conducted in the presence of the applicant, her brother and an interpreter. The Tribunal attempted to contact the applicant several days after the hearing to inform her of the decision, but was advised by the solicitors that they no longer acted for the applicant, and gave the Tribunal the last known telephone number and address of the applicant. It appears that the Tribunal contacted the applicant's brother by telephone and advised him orally of the decision on 21 August 2001. The applicant claimed that she was not notified of the decision until almost four months later. Kiefel J held that the applicant's brother was not her representative, and that advice to the applicant's brother was not notification to the applicant within the meaning of s 368D of the Migration Act . The applicant was first notified of the decision four months later, when she herself received a copy of the decision of the Tribunal, and that time began to run for an appeal from that point. However her Honour also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, and held that the form of notification did not invalidate the actual decision of the Tribunal itself, because it did not follow either expressly or impliedly from construction of the Migration Act that such a consequence would follow (at [11]) • the significance of the decision of the Full Court in Braganza [2001] FCA 318 ; 109 FCR 364 is that in that case their Honours held that where an application for review of the Minister's decision and a request for fee waiver are made within the period prescribed by s 347(1) Migration Act , the Tribunal had jurisdiction to consider the application for review provided that the application to set aside the Minister's decision is valid if made within the prescribed period and the fee is eventually paid or paid within a reasonable time after the waiver application is rejected (in particular at 375). 27 Second, principles with respect to relevant considerations are well-known, and include that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision; that the factors a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring a power or discretion; that not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law; and that the limited role of the court reviewing the exercise of an administrative discretion must constantly be borne in mind, so that generally it is for the decision-maker and not the court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising the statutory power (Mason J in Peko-Wallsend 162 CLR at 39-41). Leaving aside for the moment issues relevant to the validity of the communication of the Tribunal's decision to the appellant (to which I will refer below), in this case the letter dated 28 January 2005 from the Tribunal to the appellant made known its reasons to the appellant for decision as being: • failure of the appellant to submit enough evidence to support a fee waiver request, for example bank statements for the last six months, any credit card statements, evidence of rent paid and any expenses beyond regular living expenses • failure of the appellant to provide any evidence of her partner's financial situation • the indication by the appellant in her correspondence to the Tribunal that she intended to start working on 18 December 2004.


case_title: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76


case_text: In summary the first respondent submitted the following: • it is yet to be established whether or not a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia. In any event, the Federal Magistrate was satisfied that the conclusion reached by the Tribunal officer was a view which was reasonably open. This is correct and there is no prospect of Wednesbury unreasonableness, even assuming that Wednesbury unreasonableness does provide a separate ground of review • the primary submissions of the appellant as to the alleged failure of the Tribunal to take into account a relevant consideration, or taking into account an irrelevant consideration which it was bound not to take into account, is in reality an attack on the merits of the decision. There is no error of law, let alone a jurisdictional error, in making a wrong finding of fact. It is not the function of a court to substitute its own decision for that of the administrator by exercising a discretion that the legislature has vested in the administrator: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-40 • the evidence of the estranged partner's financial contribution was clearly a relevant consideration in the context in which the decision-maker was making his decision. The appellant had applied for a Partner Visa based upon her de facto relationship with the estranged partner • it is permissible for the Tribunal to develop a form which sets out the matters it regards as relevant, provided the Court is satisfied that they are not clearly irrelevant • the task of the Tribunal's delegate on the application of the appellant was to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. The findings made by the Tribunal's delegate were not only reasonably open on the evidence presented to him but were findings which he was required to make. The appellant's submission to the contrary is without foundation • whether the decision is a "good" decision or not is not the point - the question is whether it is officiated as a jurisdictional error • the facts of this case are not similar to those in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court held that the Tribunal had disregarded documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated • the evidence of the estranged spouse's financial contribution was clearly a relevant consideration in the context of an application for a Partner Visa based on a de-facto relationship with the estranged spouse • there is no statutory obligation to notify the appellant in any particular way, and no suggestion that the letter was not sent to the appellant's authorised recipient at the correct address. Although Mr Donohue may have been the "authorised officer" in relation to making the decision within the Regulations, Mr Hajaj was authorised to send the letter containing the decision. Nothing turns on the fact that the name "Manal Hajaj" appeared above "authorised officer" in letter to appellant • in relation to the form of notification of the Tribunal's decision to the appellant, Mr Bickford relied on the decision of Kiefel J in Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 817 where the applicant was before the Tribunal. In that case, although the applicant had previously been represented by solicitors, the hearing was conducted in the presence of the applicant, her brother and an interpreter. The Tribunal attempted to contact the applicant several days after the hearing to inform her of the decision, but was advised by the solicitors that they no longer acted for the applicant, and gave the Tribunal the last known telephone number and address of the applicant. It appears that the Tribunal contacted the applicant's brother by telephone and advised him orally of the decision on 21 August 2001. The applicant claimed that she was not notified of the decision until almost four months later. Kiefel J held that the applicant's brother was not her representative, and that advice to the applicant's brother was not notification to the applicant within the meaning of s 368D of the Migration Act . The applicant was first notified of the decision four months later, when she herself received a copy of the decision of the Tribunal, and that time began to run for an appeal from that point. However her Honour also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, and held that the form of notification did not invalidate the actual decision of the Tribunal itself, because it did not follow either expressly or impliedly from construction of the Migration Act that such a consequence would follow (at [11]) • the significance of the decision of the Full Court in Braganza [2001] FCA 318 ; 109 FCR 364 is that in that case their Honours held that where an application for review of the Minister's decision and a request for fee waiver are made within the period prescribed by s 347(1) Migration Act , the Tribunal had jurisdiction to consider the application for review provided that the application to set aside the Minister's decision is valid if made within the prescribed period and the fee is eventually paid or paid within a reasonable time after the waiver application is rejected (in particular at 375).


case_title: re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50