case_title: Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441

case_text: This proceeding commenced by application dated 8 March 2006. A statement of claim was filed on the same day. Both the application and the statement of claim were subsequently amended. On 6 November 2006 I ordered that the applicant's further amended statement of claim be struck out but granted leave to replead on or before 30 November 2006: see [2006] FCA 1441. I expressed some scepticism as to whether a case under the former s 298K of the Workplace Relations Act 1996 (Cth) ("the Act ") could be pleaded conformably with the reasons which I gave for striking out the pleading: see [2006] FCA 1441 at [34] . Not deterred the applicant filed a further amended application and a second further amended statement of claim on 30 November 2006. By notice of motion dated 18 December 2006, which was filed on 17 January 2007, the respondent seeks an order striking out the proceeding, or alternatively, the second further amended statement of claim. 2 The amended application sought the imposition of penalties on the respondent and orders for compensation, injunctions and declarations with respect to alleged contraventions of s 298K of the Act . 3 The further amended statement of claim was struck out because it did not plead facts sufficient to establish any contravention of s 298K before that provision was repealed on 27 March 2006. Specifically, it was held that the facts pleaded did not establish that when, in December 2005 and February 2006, the respondent announced a decision to transfer four Airbuses to Jetstar late in 2006 and early in 2007 and that those aircraft would not be crewed by its employees, it had thereby injured or prejudicially changed the position of particular employees or threatened to do either or both of these things. 8 The relevant legislation is set out in my earlier reasons: see [2006] FCA 1441 at [4] to [7]. 9 The respondent raises many complaints about the amended pleading. They may be summarised as follows: • No new material facts are pleaded which could support the allegation that the respondent had contravened s 298K(1)(b) and/or (c) on or before 27 March 2006. • Some conduct by the respondent which is said to be directed to the implementation of the December 2005 decision such as the transfer of the aircraft and the loss of remuneration and leave entitlements occurred after 27 March 2006 and yet is relied on to support alleged contraventions of s 298K. • The amended pleading is incomprehensible and embarrassing. This is because, in para 31B, the applicant contends that the making and communication of the 2005 decision (which occurred before 27 March 2006) and the steps taken to implement it (which occurred after 27 March 2006) constituted the relevant injury and/or alteration to prejudice. A reason (the pre 27 March 2006 requirement) for the respondent's impugned conduct is said to be that the pilots were entitled to the benefit of the enterprise bargaining agreement (para 32). Although para 32 covers conduct occurring both before and after 27 March 2006, para 32A pleads that "in the premises" the respondent has contravened s 298K. Paragraph 32B then pleads, in the alternative, that the sole or dominant reason (the post 27 March 2006 requirement) for the respondent's impugned conduct was that the pilots had the benefit of the enterprise bargaining agreement. Paragraph 32C pleads that "in the premises" the respondent has, since 27 March 2006, contravened s 792(1) of the amended Act . The respondent complains that, by pleading its case in this way, the applicant has merged the separate causes of action provided for in ss 298K and 792 thereby creating confusion such that the respondent is unable to comprehend the case it is called upon to meet or plead to it. 10 The applicant sought to meet these objections by pointing to the amendment to para 31B which now includes a reference to the "implementation" of the decision. Most of the steps which it is said were taken as part of the implementation process were alleged to have occurred prior to 27 March 2006. The steps relied on by counsel for the applicant which occurred at this time were: • The respondent's decision that Jetstar would upgrade its air operator certificate so it could operate wide bodied long haul aircraft: para 19. • The negotiations in December 2005 and 2006 with the Jetstar pilots' counsel to introduce terms and conditions of employment which would apply to Jetstar pilots involved in long haul flying: para 21. • The respondent's refusal to permit the applicant to participate in those negotiations: para 20. • The respondent's refusal, on or about 10 February 2006, to entertain negotiations with the applicant for alternative terms and conditions of employment upon which the Airbus fleet pilots would carry out the work on the four aircraft allocated to Jetstar: para 25A. • The variation, on or about 10 March 2006, of the Jetstar agreement as a consequence of agreement reached in negotiations: paras 23 and 24. The steps taken after 27 March 2006 which are relied on were the transfer of the three aircraft in October and November 2006: paras 25I, 25J and 25K.


case_outcome: cited

case_text: Under the error of law ground it is said that the Minister made findings of fact not supported by evidence. These are set out in Annexure 1. It should be noted that there is no ground under s 5 of the ADJR Act which explicitly authorises judicial review on the basis of findings of fact "not supported by the evidence". That ground appears to be wider than the "no evidence" ground in s 5(1)(h). In this case, however, the relevant particular appears to be relied upon to support a finding that the Minister erred in law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321, Mason CJ discussed the relationship between error of law contemplated by s 5(1)(f) of the ADJR Act and the "no evidence" ground referred to in s 5(1)(h) as elucidated in s 5(3). He said (at 358): The better view, one which seeks to harmonize the two grounds of review, is to treat "error of law" in s 5(1)(f) as embracing the "no evidence" ground as it was accepted and applied in Australia before the enactment of the AD(JR) Act and to treat the "no evidence" ground in s 5(1)(h), as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision. Within the area of operation of par (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision. The lengthy list of findings set out in Annexure 1 to the statement of claim gives rise to concern that this judicial review process may slide into merits review if not confined to its proper area. It is, however, too early in the proceedings to make any definitive observation in that regard. 10 It is, as counsel for the applicant suggests, open to the Court to give directions that the matter proceed on pleadings. I am not however convinced that this is a necessary course. The judicial review challenge is based upon the Minister's findings. Much of the statement of claim would not appear to be contentious as to background facts. It asserts legal duties and errors but a defence would not sharpen the issues in that respect. The question whether there was or was not evidence to support the findings referred to in Annexure 1 is not a question the resolution of which will be assisted by the filing of a defence. I am prepared to let the applicant's statement of claim stand as a statement of its case. Otherwise, in my opinion, the matter should proceed by way of affidavit and written submissions which may include the provision by the respondent of schedules identifying, in answer to Annexure 1, the evidence said to be supportive of the findings of fact there mentioned and in respect of Annexure 2, the material, if any, relied upon to show that the relevant matters there listed were, if mandatory relevant considerations, taken into account. 11 On the matter of discovery, having regard to the materials which have been disclosed, namely those set out in the Minister's reasons for decision, I see no utility in making any order for general discovery. Phosphate, however, submits that the Minister ought to discover: 1. Documentary material relevant to show what he did and read as his ""consideration" in a real sense and undertaking an active intellectual process" of the material in the documents listed in [28] of the reasons. 2. Documentary material evidencing the time spent reading the documents. 3. If he relied upon information or summaries provided to him by his department, the documents containing the information or summaries provided.


case_outcome: referred to

case_text: extracting the text of s 424A(1) of the Act, Smith FM thereafter referred to NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112 at [14] , where a Full Federal Court (Ryan, Finkelstein and Downes JJ) pointed out that the reference in s 424A to 'particulars of any information... does not require the provision of evidence' , and further that '[t] he test is whether an applicant is fairly informed of the information considered to be adverse' . Upon that basis, his Honour observed, ' [i] n some cases, the objects of the section might only be able to be met by the actual provision of a copy of the source documents for the Tribunal's information. For example, where the Tribunal proposes to draw information from the appearance of a document which can not adequately be described in particulars.' His Honour then went on to observe that the '... s 424A letter sufficiently identified particulars of the information gained from the Moscow Embassy, which was then used in its reasons...'. The ' gist ' of that information obtained by the Tribunal, as so described by his Honour, '... comprised details of a claimed employment, the fact that letters had been given to the Embassy in corroboration of that employment, and that Embassy staff "had confirmed with the rector of the institute the claimed employment and position" . His Honour concluded that the letter '... sufficiently identified the potential relevance of that information, being that it was inconsistent with the factual claims of the [appellant] to the Tribunal as to his employment in Armenia and that he was in hiding' , and that as further stated in that letter in conclusion, those 'inconsistencies have the potential to cast doubt on the credibility of your claims to have had problems with the Armenian authorities for political reasons' . His Honour therefore concluded that 'I am therefore not satisfied that the Tribunal was in breach of its obligations under s 424A ' .


case_text: FM then addressed what he described as '... the situation more broadly from the perspective of... procedural fairness, and assuming that these are capable of surviving notwithstanding the presence of s 422B of the [Migration] Act', and held that he was '... not persuaded that any failure of procedural fairness occurred in this case', or '[i] n particular... that there was any obligation on the Tribunal to provide copies of the source of its information in the absence of any request by or on behalf of the [appellant]'. His Honour observed further that '[w] ithin the [appellant's] submissions is a contention that the Tribunal was obliged to make further inquires as to the true position concerning the [appellant's] academic qualifications and his employment' , but pointed out that '... there is clear authority that no such duty lies upon the Tribunal' , referring thereby to a number of authorities, including the Federal Court decision of Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at [15] (Whitlam, Tamberlin and Sackville JJ) and the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (per Gummow and Hayne JJ). His Honour further observed that the appellant's submissions 'pointed to various factual aspects of the [appellant's] claims, which the [appellant] argued revealed error in the Tribunal's doubting of his credibility' . However his Honour pointed out that '[s] everal of these facts do not appear, in fact, to have been presented to the Tribunal' , and in any event his Honour considered that the same did no more than 'argue the merits of the factual assessments made by the Tribunal' , and did not 'reveal that the Tribunal's reasoning was not open to it on the material before it' .


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2004) 215 ALR 162

case_text: should first be observed that the Tribunal, which was a respondent in the proceedings below, has not been named as a respondent in the notice of appeal. In the light of the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; 215 ALR 162 at [43] , [91], [153] and [180], the Tribunal should be joined as a second respondent to the current proceedings. In the context of the present appeal, the appellant sought to tender his affidavit evidence of 17 July 2006; prior thereto, the appellant had failed to file any written submissions. The Minister indicated that there was no objection to the Court receiving the affidavit as constituting the appellant's submissions, but observed that if it were to be treated as evidence, it 'would be objected to'. The Minister went on to observe that the affidavit contained material that was not before the Court below or the Tribunal. I have received the affidavit to the extent that it may serve as submissions for the appellant. The principal features of the affidavit are as follows (using where appropriate the text of the affidavit): (i) his confirmation that his application for an Australian visa asserted that he 'was the Head of the Biology Department at Vanevan University'; (ii) his claim that 'the 16 th International Congress of Eye Research's Conference Co-ordinator wrote to [him] at the University on 5 August 2004'; (iii) 'the head of the Vanevan Institute wrote a letter on [his] behalf to the Australian Embassy in Moscow dated 11 August 2004 saying that [he] had been head of the [biology] department since 2000'; and (iv) '... the presiding member had been obliged to duly inform [him] of the information considered to be adverse'; The appellant made the further submission that '... the Tribunal's s 424A letter did not properly identify particulars of the information obtained from Moscow Embassy (as well as from other sources)', and that '[g]iven [the] importance of the issue I am of the view that the Tribunal was obliged to provide me not only with particulars of the information gained from Moscow but with the copies of letters mentioned in paragraph 2 of the Affidavit', and to do so for three reasons, which he formulated as follows: (i) '... the Tribunal made its own research. At 154 (CB) it was confirmed that the University does exist in Armenia. However the address of the University is entirely different'; (ii) '[a]ccording to one of the letters the presiding member relied on, the Vanevan University is located at 51/25 Pushkin Street, Yerevan 375002 Armenia' (a letter of 5 August 2004, marked annexure A, was attached to his affidavit); (iii) '[a]ccording to information obtained by the Tribunal, the said University is located in a different town (even in a different region) at 26 Miasnikyan Street, Town of Martuni, Gehgardunik Region, Armenia' (reference was thereupon made to what appears at page 154 of the Court Book).


case_outcome: applied

case_text: appellant submitted that '[f]urthermore if to accept the Minister's suggestion that the Tribunal affirmed the delegate's decision because it was not satisfied that I had been a PPA member given my alleged lack of knowledge of PPA, or [because] it "was not satisfied by the copy of my membership card", or [because] the Tribunal "was troubled by the fact" that I did not tell about the documents submitted to the Embassy early in the hearing, then it must be accepted that the Tribunal was in breach of s 424A of the Migration Act [because] it did not give me the opportunity to comment on this information.' The contention such as it was, is misconceived and without juridical foundation. The Minister submitted that those contentions made by the appellant regarding page seventeen of the Tribunal's judgment constituted 'a new section 424A case which was not put to the Federal Magistrate', in that the appellant contended that that information was not the subject of the section 424A notice provided to the appellant. The Minister pointed out rightly that those matters referred to by the appellant were all evaluations of evidence, not information within the meaning of s 424A of the Act. Reference was made by the Minister in that regard to the dictum of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [206] - [207] , where his Honour discussed what is encompassed by the statutory notion of information in the context of s 424A(1) of the Act. Allsop J observed as follows: 'Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word 'information': that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a) , (b) or (c).' In the light of the above authority, I am persuaded that Smith FM was correct to conclude in his decision below that the ' s 424A letter sufficiently identified particulars of the information gained from the Moscow Embassy, which was then used by the Tribunal in its reasons...'. The appellant concluded the case on appeal as follows: 'Moreover, even if to accept that in such circumstances the Tribunal was not in breach of s 424A of the Act, it is to be accepted that the Tribunal acted unfairly. And this unfairness is to be regarded as denial of procedural fairness and, itself the issue of apprehended bias.'


case_text: find no error in Smith FM's conclusion, outlined at [12] of my reasons, that the Tribunal afforded the appellant procedural fairness. However, it may be observed that because s 422B of the Act took effect in relation to the present proceedings, the natural justice hearing rule has no application beyond the textual requirements contained within that section of the Act. The Minister referred in that regard to the Full Court decision of SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 (Heerey, Conti and Jacobson JJ), ' in which the decision of the same Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 was applied to find that section 422B excluded the common law natural justice hearing rule' .


case_title: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214


case_outcome: followed

case_text: turn to the second proceeding and the causes of action relied upon by the applicants. It is a well accepted principle that it is not open to me to grant an interlocutory injunction in the air in the absence of a cause of action to be adjudicated upon at trial. It was made clear in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 that an interlocutory injunction should only be granted by a court in support of a known cause of action upon which the applicant for the interlocutory injunction wishes to rely at trial. The applicants relied upon the following causes of action: (a) The proposal by the Housing Associations to enter into the sub-leases constitutes oppressive conduct and conduct not in the interests of the members of the Housing Associations as a whole giving rise to causes of action under s 109 of the Associations Act and s 166 of the Aboriginal Corporations Act. The 40 year sub-leases were not in the interests of the members of the Housing Associations as a whole because the Associations were giving away their control of the management of the tenancies of the individual residents to the Commonwealth which was outside the objectives of each Housing Association. This control was being given away for $1 per year and there was no guarantee by the Minister that any part of the proposed expenditure of $100 million in respect of the town camps would be allocated to any particular or specific Housing Association. It was further submitted that the 40 year sub-leases did not protect the current rights of occupancy of the tenants under their tenancy agreements; (b) The constitutions of the Housing Associations constituted contracts with their members and the entry of the Housing Associations into the sub-leases would be contrary to the objectives of the Housing Associations and would therefore constitute a breach of their constitutions which the Minister was inducing; (c) The decision to enter into the 40 year sub-leases was ultra vires the Housing Associations; (d) The management committee of each Housing Association was in breach of the fiduciary duty they owed to the Association and its members by agreeing to enter into the sub-leases. (e) The entry by the Housing Associations into the sub-leases constituted a breach of contract as the sub-leases would constitute a breach of the individual tenancy agreements of the tenants of the Housing Associations; (f) The Minister was engaging in the tort of intimidation by unlawful means in that she was intimidating the Housing Associations to enter into the sub-leases when she had not accorded procedural fairness to the individual tenants; (g) Section 20CA of the Aboriginal Land Rights Act had not been complied with as the Housing Associations were required to make a request to the Minister to enter into the sub-leases but that request had to be voluntary. The requests made by the Housing Associations were not voluntary. In the circumstances as they developed in the course of the hearing I do not consider that it is necessary to reach a conclusion whether there is a serious question to be tried in relation to each of the causes of action relied upon by the applicants. I am satisfied that there is a serious question to be tried that if they now enter into the sub-leases the Housing Associations will not be acting in the interests of their members as a whole thereby giving rise to a cause of action under s 109 of the Associations Act and s 166 of the Aboriginal Corporations Act. Under their Constitutions the only way a person can become a member of the relevant Housing Association is if that person is a resident of the town camp which is situated on the land which is comprised in the perpetual lease or Crown Lease held by the Association.


case_text: is important to recognise that at this stage of both proceedings, as I am dealing with applications for interlocutory relief, I do not have to make any final determination in respect of the issues raised before the Court. Consistently with established authority I am required to determine whether there is a serious question to be tried in relation to the causes of action raised by the applicants in each proceeding. If I am so satisfied and am satisfied that the applicants will suffer irreparable harm in respect of which damages are not an adequate remedy if an injunction is not granted, it is then necessary to determine whether the balance of convenience favours the grant or refusal of the injunctive relief sought. I am therefore following and applying the process identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153: "In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction." Consideration of the first proceeding In relation to the first proceeding the applicants submitted that a breach of the rules of natural justice has occurred or is occurring or is likely to occur in connection with the proposal of the Minister to give the notice pursuant to s 47(1) of the NER Act. The tenants of the Housing Associations will be significantly affected by the proposed decision so that the Minister is obliged to observe the principles of natural justice or procedural fairness and ensure that the tenants are made aware of the manner in which their rights will be affected by the notice and are given an opportunity to make submissions to the Minister as to whether or not she should give a notice before she finally makes a decision. The applicants submitted that the power conferred on the Minister by s 47 of the NER Act to issue a notice which had the effect of vesting all rights and interests in the land to which the notice related with the Commonwealth (see s 47(3)), was subject to a duty imposed upon the Minister to accord procedural fairness or natural justice to the applicants. It was submitted that that duty had not been observed in the present circumstances as the tenants had not been made fully aware of the consequence of the notice on their rights to occupy the land which they sub-leased from the Housing Associations and that they had not been given an opportunity to make submissions to the Minister in respect of her proposal to give such a notice. The Minister submitted that the power given to the Minister pursuant to s 47 was not constrained by any obligation to accord natural justice or procedural fairness to the tenants whose rights would be affected, indeed extinguished, by the giving of a notice pursuant to s 47. The Minister acknowledged that generally one would expect that a power of the kind contained in s 47 would be subject to a duty to accord procedural fairness and that the Commonwealth's power to acquire land by compulsion contained in the Lands Acquisition Act 1989 (Cth) (" Lands Acquisition Act ") was generally subject to an obligation to notify affected parties. The Minister then submitted that the NER Act was enacted with a view to a need to respond urgently to a national emergency and that s 47 was enacted as a separate power and that the usual procedural provisions in the Lands Acquisition Act were expressly put aside in relation to acquisitions under s 47. In this context the Minister referred to s 50(2) of the NER Act. The Minister submitted that s 50(1) and (2) of the NER Act excluded written and unwritten natural justice obligations. The Minister submitted that s 50(1) was an unambiguous statement that the s 47 power was not constrained, even by an unwritten law that might otherwise support an implication for a natural justice obligation. The Minister submitted that it was plain that the legislative expressly turned its mind to, and excluded, procedural fairness that was expressed in written law. I consider that there is a serious question to be tried that this is not the proper construction and effect of s 50. Put another way, I consider there is a serious question to be tried that the provisions of s 47 of the NER Act taken with the provisions of s 50 do not oust the obligation cast upon the Minister to accord natural justice or procedural fairness to the tenants who will be affected by the proposed notice. I consider it is arguable that s 50 is concerned with laws whether written or unwritten which are inconsistent with the provisions of Div 1 and Div 2 of the Act. I consider that it is clearly arguable that the principles of natural justice or procedural fairness are not inconsistent with the exercise of power to give a notice under s 47. As the applicants submitted, it is arguable that natural justice is an adjunct to the exercise of that power.


case_title: Kioa v West (1985) 159 CLR 550

case_text: is a well established principle that a statute will not be construed as excluding the operation of common law principles such as the obligation to accord natural justice or procedural fairness in appropriate circumstances unless there is a clear and unambiguous statement or inference to that effect to be extracted from the relevant legislation. In Kioa v West (1985) 159 CLR 550 Mason J said at 584 - 585: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd v Federal Commissioner of Taxation (1) Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v Commonwealth Conciliation and Arbitration Commission ; Ex parte Angliss Group (2) ; National Companies and Securities Commission v News Corporation Ltd (3) . ... When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned." With that background I consider that there is a serious question to be tried that the Minister has not accorded the tenants natural justice or procedural fairness at this point in time in relation to her proposal to give a notice under s 47. The proposal to give the s 47 notice was first raised or articulated clearly by the Minister in the letter of 24 May 2009. Prior to that time there had been numerous consultations and dialogue between the Minister and the representatives of the Housing Associations and the tenants but that was in relation to the proposal that the Housing Associations enter into 40 year sub-leases. Whether the Minister has accorded the tenants natural justice or procedural fairness in relation to her proposal to give a notice under s 47 is to be determined by her conduct and the conduct of her department on and after 24 May 2009. I consider there is a serious question to be tried that the media release, the letters sent by the Minister to the Council and to the Housing Associations, the meetings held subsequently with some of the tenants and other persons and the leaflet distributions have not been sufficient to discharge the Minister's obligation to bring to the attention of all the tenants the manner in which the proposed notice will affect their rights. There is also a serious question to be tried that they have not been given a proper opportunity to make submissions to the Minister. I am not satisfied that a process or procedure has been adopted whereby sufficient attempts were made to bring these matters to the attention of all the tenants. The evidence before me is insufficient to satisfy me that all the tenants have been given an opportunity to make submissions to the Minister and have had fairly and squarely put before them the consequences of the Minister giving a notice pursuant to s 47. The leaflets do not make it clear that the tenants' rights to occupy their properties by way of sub-leases will be extinguished forever. Further, this was not made clear at the meeting on 29 June 2009 or in the leaflets that were distributed in the town camps. I accept the Minister's submission that the content of natural justice is to be determined by reference to the circumstances of the case: Kioa v West [supra]. In my view, there is a serious question to be tried that the content of the natural justice principle in the circumstances of this case requires that the tenants be told directly, and not indirectly through the Housing Associations or the Council, that a consequence of the giving of the notice is the extinguishment of their rights to occupy their houses. The Minister submitted that a decision to acquire land by compulsion might in the ordinary case be regarded as having grave consequences for a person holding an interest in the land but that in the present case the evidence disclosed that the practical effect of a decision by the Minister to acquire the land pursuant to s 47 was substantially different to the ordinary case. The Minister submitted that the reality was that there would only be a beneficial impact on the living conditions of the town camp inhabitants. The difficulty with that submission is that it ignores, or it does not take into account, the fact that there will be an extinguishment of tenants' rights of occupation of their houses. To submit, as the Minister did, that "subject to new tenancy agreements being necessary, no other legal rights of the applicant or group members are impacted", is to ignore the fact that enforceable rights are being replaced with an opportunity to negotiate a new tenancy agreement which opportunity depends upon agreement between two parties. The next inquiry to be made is whether the balance of convenience is in favour or against the grant of an injunction. I am satisfied that the balance of convenience is in favour of granting an injunction restraining the Minister from giving a notice pursuant to s 47 until such time as the Court can be satisfied that: (a) the tenants have been given clear and unambiguous information that if the notice is given their tenancy rights over the land they occupy pursuant to their sub-leases will be extinguished forever; and (b) the tenants have been given the opportunity to make submissions to the Minister after they have been given this information. I do not intend to prescribe the process which the Minister should undertake in order to discharge her obligations to accord the tenants natural justice or procedural fairness. What I am disposed to do is to grant an injunction restraining the Minister from giving a notice pursuant to s 47 until further order. Such an injunction will enable the Minister to take such steps as she may consider, or she may be advised, will bring to the attention of the tenants the consequences of the giving of the notice and will give them an opportunity to make submissions to her. The injunction will be cast in terms restraining the Minister from giving a notice until further order. It will not be cast in terms restraining the Minister from taking any steps in and towards the giving of the notice.


case_outcome: considered

case_text: as Senior Counsel for the Minister submitted, the tort of intimidation also requires establishing an intention on the part of the alleged tortfeasor to cause economic harm: Northern Territory of Australia v Mengel [1995] HCA 65 ; (1994) 185 CLR 307 at 342. There was no evidence before me of such an intention by the Minister. Indeed the intention of the Minister is to the contrary. The costs of the application for interlocutory relief in both proceedings will be reserved for further consideration. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 6 August 2009 Counsel for the Applicant: J Beach QC, D Harding and F Forsyth Solicitor for the Applicant: Human Rights Law Resource Centre Ltd Counsel for the First and Second Respondents: S Lloyd S.C. and L Clegg Solicitor for the First and Second Respondents: Australian Government Solicitor Counsel for the Third Respondent: S Brownhill Solicitor for the Third Respondent: Australian Government Solicitor Counsel for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondents: P Gray S.C. Solicitor for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondent: Gilbert + Tobin Date of Hearing: 30 July, 4 August 2009 Date of Judgment: 6 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/844.html


case_title: Sanders v Snell (1998) 196 CLR 329

case_text: Sanders v Snell (1998) 196 CLR 329 the majority of the High Court, in relation to the tort of interference with trade or business interests by unlawful means said at 342: "There are, however, several reasons for concluding that a want of procedural fairness by the appellant before giving the direction that he gave to the Bureau is not conduct that can be characterised as 'unlawful means' for the purposes of this tort". I consider that this observation is equally applicable to the tort of intimidation.


case_text: was pointed out in Szencorp Pty Ltd v Clean Energy Council Ltd (2009) 69 ACSR 365 at 378-379: "The 'contrary to the interests' provision now contained in subpara (d) of s 232 [of the Corporations Act 2001 (Cth)] has a separate and distinct area of operation from the 'oppression' provisions in subpara (e) of s 232. The manner in which a company is being administered and in which its affairs are conducted may fall within the category of conduct contrary to the interests of the company's members as a whole although it may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company" (Citations omitted) The Housing Associations have made it clear that the reason or, at least the main reason, why they propose to enter into 40 year sub-leases with the Director is to avoid the alternative of the Minister exercising power under s 47 of the NER Act to give notice which will have the effect of extinguishing forever the interests of the Housing Associations in the relevant pieces of land. The attitude of the Housing Associations on this issue was made abundantly clear in a letter from their solicitors to the Minister on 29 July 2009 which was, inter alia, in the following terms: "As you know, and as we are now instructed to make clear, the Housing Associations are prepared to enter into the proposed 40 year subleases notwithstanding your rejection of their many requests for the inclusion of terms and conditions designed to further protect the ongoing interests of the Housing Associations, tenants and residents. The Housing Associations have agreed to enter into the subleases for the simple reason that you have threatened them with compulsory acquisition if they do not enter into the subleases. As you know, the loss of tenure to these lands is something that is abhorrent to the Housing Associations and they could not run the risk that it might occur. It is in the overriding best interests of the Associations and their members that their interests in these lands be maintained rather than completely foregone. Acquisitions of these land would not allow the Associations or members to have any input into protecting their rights or interests. Indeed, this ultimate risk of compulsory acquisition has hovered in the background throughout the protected negotiations. That risk was made abundantly clear when you issued notice that you were considering these compulsory acquisitions. Likewise, your letter to Tangentyere dated 24 July 2009 makes it perfectly clear that unless the subleases are entered into in the terms attached to your letter then you will proceed in relation to the potential compulsory acquisitions." Counsel for the Housing Associations submitted that it was in the overriding best interests of the Housing Associations and the tenants of the Housing Associations to retain their perpetual leases and not to have their titles extinguished by compulsory acquisition. He submitted initially that the Housing Associations were prepared to grant the sub-leases to the Director for two reasons. Firstly, because it appeared that it was the only way that Commonwealth funding would be provided. Secondly, because it was the only way to avoid compulsory acquisition.


case_text: Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding. The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.


case_title: MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172


case_title: NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659


case_title: Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227

case_text: Ms Collins then submitted that a balancing exercise was involved, essentially between the forensic significance of the material and the harm that would be done to the public good by disclosure. In essence, Mr Halley accepted that proposition the correctness of which is borne out by a recent judgment of the Full Court of this Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Limited (2008) 169 FCR 227 at 232 [22]. The Full Court (Heerey, Moore and Tracey JJ) set out the well known passage from Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 38-39, which was in these terms: The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.


case_text: Ms Collins then submitted that a balancing exercise was involved, essentially between the forensic significance of the material and the harm that would be done to the public good by disclosure. In essence, Mr Halley accepted that proposition the correctness of which is borne out by a recent judgment of the Full Court of this Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Limited (2008) 169 FCR 227 at 232 [22]. The Full Court (Heerey, Moore and Tracey JJ) set out the well known passage from Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 38-39, which was in these terms: The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. 10 Quite apart from the Full Court's decision to that effect, I am, of course, bound by what was said in Sankey v Whitlam . Ms Collins then submitted that I should take into account the clear relevance of the material to the present proceedings. She submitted that the relevance was plain from the terms of the notice to produce. The notice to produce was in the following terms: 1. All documents provided to Mr David McGuinness on or before 10 October 2008 in relation to the decision or opinion recorded in the letter from Ms Dodds and Mr Astar to Atanaskovic Hartnell dated 10 October 2008 that it will not be possible for the First, Second and Third Applicants to have the same legal representatives, or different representatives each from Atanaskovic Hartnell, at their examinations under section 19 of the ASIC Act (" the Decision "). 2. All documents provided to Mr McGuinness in relation to the Reasons for the Decision pursuant to s.13 of the Administrative Decisions (Judicial Review) Act Re: Legal Representation of Mr Collard, Ms Li and Ms Zeng at their Examinations pursuant to s.19 of the ASIC Act signed by him and dated 22 October 2008. ASIC produced MFI 1 in answer to both paragraphs of that notice to produce. In Ms Collins' submission, it followed that the relevance of the material was established. 11 Mr Halley submitted, broadly speaking, that perhaps not that much could be gleaned from production, particularly where the issues in the proceedings were effectively about whether a particular administrative decision should be set aside. I approach the matter on the basis that the documents are relevant. However, beyond that, there is little that can usefully be said. Ms Collins submitted that the balancing exercise should take into account the possibility that a confidentiality regime could be fashioned which would limit access to the Applicants' advisors. In her submission, it was significant that Mr McGuinness did not say in his affidavit that such a regime could not work. 12 Mr Halley submitted that disclosure to the legal representatives should not occur due to the risk of inadvertent disclosure. Further, he submitted that a legal representative holding such information might be compromised even if only subconsciously. I do not read too much into the fact that Mr McGuiness did not deal with the possible alternative of a confidentiality regime, particularly where it was agreed that he should not be cross-examined. I do think that there may be risks of unintended subconscious disclosure. However, the extent of the risk is difficult to discern without viewing the documents. Ms Collins then submitted that to the extent that informers were involved, their names and any other identifying aspects of the materials could be redacted.


case_text: Ms Collins, who appeared for the Applicants, submitted first that the Court should examine the documents in MFI 1 for itself to determine the claim. On the other hand, Mr Halley SC, who appeared with Ms Allars for ASIC, submitted that in the first instance the Court should determine the matter on the affidavit of Mr McGuinness and only if it proves not possible to determine the claim should the Court look at the material. In the event that the claim was not obvious from that process, the Court should permit further evidence to be put on. Mr Halley drew particular attention to that which had fallen from Gummow J in the decision of the Full Federal Court in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 61: Where a claim has not been propounded in proper form, the court has various avenues open to it before taking its final decision in the matter. It may order that unless within a specified time a further affidavit be sworn within a specified time which shows the claim to privilege with greater particularity, the documents in question should be produced for inspection ... The court may call for a further affidavit from the same deponent to clarify some point or amplify the claim; or it may require the tender of an affidavit sworn by a more senior officer or the relevant Minister. 8 Mr Halley says that the documents contained in MFI 1 are pertinent to an ongoing investigation and that, generally speaking, they would be covered by public interest immunity. In my opinion, Mr Halley's submissions on this are to be preferred. Generally, if a claim for public interest immunity can be substantiated without the Court seeing the material, that is the preferable course. This is particularly so in relation to certain classes of documents such as cabinet documents. In view of the exigencies of the present situation, if that affidavit does not suffice, however, I will inspect the documents myself, notwithstanding what was said by Gummow J in Zarro . If that does not suffice, then I will permit a further affidavit to be filed. 15 By itself, I do not think that this explanation is sufficient for me to form a view that the documents are the proper subject of a claim for public interest immunity. More is that so where it does not appear from Mr McGuinness' affidavit that he has, in fact, examined the documents himself. I propose, therefore, to examine this document in due course. I am fortified in that approach by what was said by Lockhart J in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 50-51: In these days with large government instrumentalities and agencies involved in time consuming and extensive investigations into possible irregularities and offences, great care is required by the bodies themselves in ensuring both that the correct person within the structure of the organisation (that is, a person who knows the facts, has seen the documents and who is preferably at a high level within the organisation) swears the appropriate affidavit claiming public interest immunity and that the claim is not made too widely so as to sweep within its net documents that are not legitimately an essential integer in the investigative process. This also calls for vigilance by the courts lest documents are shielded from public scrutiny or inspection by parties to litigation under an unduly broad umbrella of public interest immunity. 16 Document 2 is an email from Ms Hayden to Ms Dodds of 4 September 2008, attaching a spreadsheet. Ms Dodds is a solicitor within the Commission. Mr McGuinness says that the email contains the work of an ASIC officer, which work is derived from the information in document 1. He says that it should be the subject of a public interest immunity claim on that basis. For the same reasons which obtain in the case of Document 1, I propose to examine document 2. 17 Document 3 is a file note of Ms Dodds of 8 September 2008, recording a conversation she had with members of the public. Ms Collins sought clarification during the course of the hearing that they were not the same discussions of which evidence, apparently, has already been filed in Supreme Court proceedings. ASIC gave that assurance. The information in the document was obtained voluntarily in circumstances where its donors would not have appreciated that their information would be given to the Applicants. Disclosure would imperil the future gathering of such information. Mr McGuinness also thought that if this information was known to the Applicants they may be able to tailor their evidence in response. It might also tip them off as to the line of inquiry being pursued. 20 I will not describe in any detail the content of document 1. Mr McGuinness says these documents have a tendency to reveal the course of the investigation. I am, unfortunately, unable to tell from looking at them the extent of the truth of that proposition. The same may be said of documents 2, 3 and 5. For present purposes, I have resealed MFI 1 and I direct that it not be opened by any person apart from myself or as ordered by another judge of this Court. Having regard to what was said by Gummow J in Zarro , I propose to allow ASIC to provide to the Court a confidential affidavit setting out what it is that is in documents 1, 2, 3 and 5 that makes them the subject of a proper claim for public interest immunity. That affidavit is to be given to my associate in a sealed envelope by 4 pm tomorrow. 21 The envelope is not to be opened by any person other than myself or as directed by another judge of the Court. The affidavit is not to be served on the Applicants nor filed through the registry. I will deliver a separate judgment at 9.30 am on Monday 27 October 2008. [ There was further discussion with counsel. ] 22 I amend the deadline in respect of the affidavit to be 4 pm on Monday 27 October 2008. I will deliver judgment at 9.30 am on Tuesday 28 October 2008. I vacate the hearing fixed for tomorrow and I fix the matter for hearing on Friday 31 October 2008. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 7 November 2008 Counsel for the Applicants: Ms EA Collins Solicitors for the Applicants: Atanaskovic Hartnell Counsel for the Respondent: Mr JA Halley SC with Ms M Allars Solicitors for the Respondent: Australian Securities & Investments Commission Date of Hearing: 23 October 2008 Date of Judgment: 23 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1650.html


case_text: my opinion, it cannot be said that there is any 'independent and unimpeachable' basis for the Tribunal's decision, uninfected by any jurisdictional error under s 424A (see MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7] ). Thus, although the matter is by no means free from doubt, the appeal should be allowed, the orders of the Federal Magistrate's Court set aside and in lieu thereof it be ordered that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law. The first respondent is to pay the costs of the appellants of the proceedings in the Federal Magistrates Court and of this appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 15 November 2006 Solicitor for the Appellants: Mr Chandra Jayawardena Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Phillips Fox The Second Respondent submitted Date of Hearing: 3 November 2006 Date of Judgment: 3 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1507.html


case_text: inquired of counsel for the applicants as to the source of the power to make the order sought in para 4 of the orders by consent. The effect of that order, in conjunction with para 3, would be to cast upon the respondent personal liability for the costs of this proceeding by preventing him from reimbursing himself from the bankrupt estate. In my view, it is appropriate that the respondent assume personal liability for the costs of the application. Counsel for the applicants referred me to the judgment of Wilcox J in Oayda v Mercantile Mutual Life Insurance Co Ltd (unreported, Wilcox J, 20 February 1995) in which his Honour made an order the effect of which was to require a trustee in bankruptcy to pay costs personally, when the trustee in bankruptcy had acted wrongly in relation to a proof of debt. On considering the question, I think that s 179(1)(b) of the Bankruptcy Act provides me with sufficient authority to make an order ensuring that the respondent will bear the costs personally. For these reasons, I make the following orders by consent, that: Pursuant to s 179 of the Bankruptcy Act 1966 (Cth), the respondent is removed as trustee in bankruptcy of the bankrupt estate of Ramadan Alievski. Pursuant to s 179 of the Bankruptcy Act 1966 (Cth), Gess Rambaldi of Level 19, 15 William Street, Melbourne, Victoria, be appointed as trustee in bankruptcy of the bankrupt estate of Ramadan Alievski in place of the respondent. The respondent pay the applicants' costs of this application in the amount of $7,000. The costs payable by the respondent under order 3 herein must not be reimbursed by the bankrupt estate of Ramadan Alievski. I certify that the preceding nine (9) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 24 June 2009 Counsel for the applicants: Mr S Waldren Solicitor for the applicants: Taylor Splatt & Partners The respondent did not appear but signed orders by consent Date of hearing: 1 June 2009 Date of judgment: 1 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/688.html


case_title: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, Lindgren J, 24 May 1996)

case_text: However, this would not be the first time when solicitors on behalf of clients have made firm assertions of wrongdoing by a proposed defendant. Assertion is not proof. There are equally stern denials made in the responses to those assertions by the respondent's solicitors. As counsel for the applicants put it, an essential element of the claim is that Dr Minas is using the algorithm forming part of the applicants' system. There remains a possibility that he has created a new algorithm, and the applicants, reasonably, in my opinion, wants to obtain forensic examination to eliminate that possibility before making a final decision whether to commence proceedings. I note that the provisions of O 15A r 6(b) extend to a decision whether or not to commence a proceeding which depends on whether or not a defence may be made out: see, Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd at 8 (unreported, Lindgren J, 24 May 1996). 3 Accordingly, the court finds in favour of the applicants' motion. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY. Associate: Dated: 27 September 2007 Counsel for the Applicant: L Duncan Solicitor for the Applicant: Cornwall Stodart Counsel for the Respondent: A Thomas Solicitor for the Respondent: Browne & Co Date of Hearing: 27 September 2007 Date of Judgment: 27 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1513.html


case_title: Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002 FCA 184

case_text: WAFIC has been named as a respondent in some other native title determination applications in Western Australia, the District Registrar who received its notice of intention to become a party to the Amangu application referred the matter to a judge because of a decision of Lindgren J refusing an application by the Chamber of Minerals and Energy of Western Australia to be joined as a party in the Wongatha proceedings Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002] FCA 184. In the notice of intention to become a party lodged by WAFIC on 28 July 2005, it gave details of its interest thus: Application may have an adverse effect on the rights and interests of the Western Australian Fishing Industry Council (Inc) as set out in Attachment A.' Attachment A to the notice identified WAFIC as the peak industry body for the fishing industry in Western Australia. It referred to its role of liaising with government on behalf of its members in connection with the management of various fisheries. Some of those fisheries are located in the claim area. WAFIC's role and function as liaison with government in relation to policies and issues concerning the fishing and pearling industries was said to depend on: the managed fisheries in a particular area; the number of its members operating in that area; and the ability of its members to access the fisheries in that area.' It was submitted that the function of various committees and WAFIC's role on those committees constituted an interest capable of being affected by the native title claim. If the claim were made out WAFIC's role in advising government in relation to issues raised by the committees would be affected as the rights of its members would be affected by the declaration of co-existing rights or by the declaration that no rights exist. It described its role in those committees as 'political' in that it plays a part in the political process of lobbying or at least making recommendations to government. In Harrington-Smith , Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242 (Mansfield J).


case_text: leading case on the range of 'interests' which confer standing under the Act is Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1. That case concerned the party provisions of the Act in effect before the 1998 amendments. They were ss 68 and 69 . The decision, however, remains authoritative for the similarly worded party provisions in s 84. In that decision the Full Court held that the interests which could be affected by a determination in relation to an application for native title and thus give rise to an entitlement to party status are not confined to the interests in land or waters which are referred to in s 253 of the Act. Black CJ held that the interest sufficient to give a person the right to become a party to an application should be greater than that of a member of the general public. They must be genuine and the possible effect must be genuine. The Parliament could not have contemplated that the rights given to persons as parties would have other than a genuine foundation. His Honour said (at 7): nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance. The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.' The requisite interest did not need to be proprietary, legal or equitable. He said (at 7): the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not be regarded as having interests that may be affected by a determination. To the contrary, the consensual objects of the Act would seem to be advanced if a person with genuine interests of that nature that might or would be affected did have the rights of involvement in the process of native title determination given by the Act to a person who is a party. Each case will of course turn on its own facts and whether or not interests will or may be affected will depend upon an assessment of the interaction between the interests asserted by a person who wants to be a party and the nature and extent of the native title rights and interests claimed.' The concept of interest did not extend to interests of 'an emotional conscientious, ideological or intellectual kind only'. Relevantly his Honour also said (at 9): formation of an association or the incorporation of a body with particular objects will not, of itself, create interests that may be affected for the purposes of provisions in the Act relating to parties. ... a body that represents the interests of others whose members have interests that may be affected, does not, for that reason alone, become a person whose interests are affected; such interests as it thereby has are wholly indirect. is not to deny that a corporation may have interests that may be affected by a determination of native title if, for example, its activities might be curtailed or otherwise significantly affected by the determination.' In Woodridge v Minister for Land and Water Conservation for the State of New South Wales [2001] FCA 419 ; (2001) 108 FCR 527, Katz J considered the proposed joinder of the New South Wales Farmers' Association pursuant to a notification under s 84(3)(b) of the Act. His Honour denied the Association party status on the basis that it had failed to establish its possession of interests which might be affected by a native title determination in either sense of: (a) proprietary or contractual interests in the land the subject of the application; or (b) conducting activities which may be adversely affected by such a determination. His Honour held, following the judgments in Byron Environment Centre that a body that represents the interests of others whose members have interests that may be affected does not, for that reason alone, become a person whose interests are affected. Katz J distinguished the Gunai decision and its acceptance by Lockhart J on the basis that the Lake Tyers Beach Sports and Angling Club was not a legal person, separate from its individual members. His Honour said that to recognise 'the Club' as a party was simply an informal method of recognising its individual members as parties. He observed that Lockhart J appeared to be conscious of the Club's unincorporated status. In Harrington-Smith , Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242 (Mansfield J). It is clear from the authority of the Full Court decision in Byron Environment Centre that WAFIC cannot acquire party status by reason of the possible effects of a native title determination on the interests of its members. It asserts, however, that it has an affected interest by reason of its participation in statutory committees advising government in relation to managed fisheries, some of which exist in the claim area. It does not appear to me however that this function, carried out on the part of WAFIC, can be compared to that of a statutory authority with direct responsibility for the management of an area the subject of a native title determination application. WAFIC's involvement as described in its submissions and supporting evidence, seems to relate to advice to government on policy for the management of the relevant fisheries. No evidence is shown which logically link the economic interests of WAFIC as an organisation to a native title determination in the claim area. Nor am I satisfied that the evidence discloses any real basis upon which WAFIC's capacity to participate in the committees to which it has referred would be affected. In so saying, I accept that WAFIC has been joined as party in some applications without any contention and has acted as agent in others. It has played a valuable role in the submissions that it has made in such cases, not least in the Bardi Jawi case which I heard as trial judge, albeit WAFIC had been joined by order of Lee J. In my opinion however, I am bound by the authority in Byron Environment Centre to reject WAFIC's application for joinder as a party. It may of course act as agent on behalf of a party in relation to the proceeding. That does not require the intervention of the Court. Under s 84B a party to a proceeding can appoint an organisation as its agent. WAFIC's application for joinder is therefore refused. The same considerations arise in relation to the Ngarla Peoples' claim and again, WAFIC's application for joinder in that claim will be refused. I note that among the proposals for amendments to the Act arising out of the recent Commonwealth Government review is a proposal under which industry bodies could be joined as parties. In my opinion, provided that their participation is confined to the representation of their member interest holders in matters directly relevant to the impact of a native title determination on those interests, then the capacity to effect such a joinder may be a useful facility.


case_title: Re An Application for Native Title Determination by the Gunai People (unreported, National Native Title Tribunal, 17 January 1997, French P)

case_text: J, like Black CJ, rejected a construction of the party provisions of the Act which would limit their application to persons with legal or proprietary interests. His Honour said (16): who may not have a right or interest in the land in a proprietary sense, but nevertheless have an interest in a broader sense, will be entitled to have a say in the matter and be able to negotiate some arrangement to accommodate their interests if they are parties to the application, which is the question arising in this case.' His Honour referred, without disapproval, to my decision, as President of the National Native Title Tribunal, in relation to the Gunai Peoples' native title determination application in 1997 allowing joinder of the Lake Tyers Beach Sport and Angling Club which comprised: 65 members who use the waters and surrounding areas of Lake Tyers daily for recreational fishing.' An Application for Native Title Determination by the Gunai People (unreported, National Native Title Tribunal, 17 January 1997, French P) Lockhart J said that the standing provision was not to be encased in technical rules. The class of interests for which it provides is wider than that defined by s 253 and it would be impossible and unwise to attempt to define the class in any definitive sense. It would depend on the facts and circumstances of each case (at 19): interest must be above that of an ordinary member of the public, and must be not that of a mere intermeddler or busybody. The person must have some interest that may be affected by the native title determination. The persons who sought the status of parties before French J in the Gunai application provide a good example of persons with a relevant interest for the purposes of s 68(2)(a). If it be said that this is too broad an analysis and that the floodgates will open, then I must say that over the past 18 years on the Bench of this Court I have never seen the floodgates open in any matter, despite dire predictions to the contrary.' In Woodridge v Minister for Land and Water Conservation for the State of New South Wales [2001] FCA 419 ; (2001) 108 FCR 527, Katz J considered the proposed joinder of the New South Wales Farmers' Association pursuant to a notification under s 84(3)(b) of the Act. His Honour denied the Association party status on the basis that it had failed to establish its possession of interests which might be affected by a native title determination in either sense of: (a) proprietary or contractual interests in the land the subject of the application; or (b) conducting activities which may be adversely affected by such a determination. His Honour held, following the judgments in Byron Environment Centre that a body that represents the interests of others whose members have interests that may be affected does not, for that reason alone, become a person whose interests are affected. Katz J distinguished the Gunai decision and its acceptance by Lockhart J on the basis that the Lake Tyers Beach Sports and Angling Club was not a legal person, separate from its individual members. His Honour said that to recognise 'the Club' as a party was simply an informal method of recognising its individual members as parties. He observed that Lockhart J appeared to be conscious of the Club's unincorporated status.


case_text: J referred to the joinder by Olney J of the Victorian Field and Game Association as a party in the Yorta Yorta application Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 482. His Honour also referred to the joinder of the persons and organisations referred to in the Gunai Peoples' case. He observed that the 10 groups of persons and organisations admitted as parties in that case included frequent recreational users of the land and waters covered by the claim, commercial entities said to be dependent for their livelihood upon continuing recreational use of the claimed area by local persons and visitors, property owners entitled to free access to parts of the area claimed and sporting and angling clubs or associations which are the conducted sporting, shooting or angling activities in parts of the claimed areas or had members who frequently or habitually engaged in such activities. In relation to the standing of organisations representing persons whose interests might be affected, Merkel J said (at 43): an individual lacks the requisite interest the position cannot be improved or altered by an application to be a party being made by an organisation representing many such individuals.' His Honour went on, however, to say that (at 43): problem arising in respect of an organisation representing members who have interests that may be affected by a determination is that the interests of the organisation are indirect. Put another way, it is the interests of members, rather than those of an organisation representing them, that may be affected.' His Honour further observed (at 43): different situation might arise if such organisations themselves conduct activities in the area covered by the claim which may be curtailed, interfered with or otherwise affected by a determination. In such cases there is no reason in principle why such organisations may not be persons whose interests may be affected by a determination.'


case_text: Woodridge v Minister for Land and Water Conservation for the State of New South Wales [2001] FCA 419 ; (2001) 108 FCR 527, Katz J considered the proposed joinder of the New South Wales Farmers' Association pursuant to a notification under s 84(3)(b) of the Act. His Honour denied the Association party status on the basis that it had failed to establish its possession of interests which might be affected by a native title determination in either sense of: (a) proprietary or contractual interests in the land the subject of the application; or (b) conducting activities which may be adversely affected by such a determination. His Honour held, following the judgments in Byron Environment Centre that a body that represents the interests of others whose members have interests that may be affected does not, for that reason alone, become a person whose interests are affected. Katz J distinguished the Gunai decision and its acceptance by Lockhart J on the basis that the Lake Tyers Beach Sports and Angling Club was not a legal person, separate from its individual members. His Honour said that to recognise 'the Club' as a party was simply an informal method of recognising its individual members as parties. He observed that Lockhart J appeared to be conscious of the Club's unincorporated status. In Harrington-Smith , Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242 (Mansfield J). In the present case WAFIC does not take issue with what Lindgren J drew from Byron Environmental Centre and Woodridge . Rather, WAFIC contended that its factual position differed from that of the Chamber of Minerals and Energy in a material way. It relied in particular upon WAFIC's representation on, and participation in, advisory committees established under the FRMA. This participation, it was said, included representing the interests of its members by presenting and promoting its members' views with respect to fishery management and protection policy and acting as an intermediary between government and industry. It referred to the formulation of cohesive industry policy. It was contended that WAFIC's participation in these committees is essentially in its own right and on behalf of 'industry' and not merely on behalf of any particular member of WAFIC. An impact on fisheries in the claim area would or could have an effect on management of fisheries outside or partly outside the claim area. WAFIC submitted that the cases which suggest that an industry body does not have an entitlement to participate in the native title claim in its own right have not dealt with an industry body with statutory functions in resource management under existing statutes. It also referred to Nicholson J's decision to allow WAFIC's application to be joined in Ngaluma Ingibandi and it was submitted that unless the view was formed that Nicholson J was clearly in error in allowing WAFIC's notice, then WAFIC ought to be joined as a party to the claim. However, the basis upon which his Honour made the joinder order is not evident as there were no reasons published for the decision. In the alternative, WAFIC submitted that it should be '... joined as a party as agent for specified parties under s 84B of the Native Title Act '. This submission misconceives the operation of s 84B which provides: A party to a proceeding may appoint a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding. The same body may act as agent for 2 or more parties in the same proceeding.' The status of 'agent' under s 84B of the Act is qualitatively different from that of party.


case_text: Harrington-Smith , Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242 (Mansfield J).


case_outcome: discussed

case_text: line between a claim apparent on the face of the material before the Tribunal and a claim which depends for its exposure on constructive or creative activity by the Tribunal may not always be easy to detect. However, I think it is clear on which side of the line this case falls because the case now put is quite a different one to the case put to the Tribunal. In my respectful opinion, the words of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at 479 [1] are apposite: "Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process." In applying the relevant principles to the facts, it is worth repeating the facts as to how the appellant has formulated his claims at various stages. In this application for a protection visa, the appellant claimed that he had a well-founded fear of persecution because he was a male member of his family and he was at risk of being killed by members of an opposing family. A blood feud had arisen as a result of disputes over land ownership. Before the Tribunal, the appellant claimed that he had a well-founded fear of persecution because: (1) he is a member of a particular social group ("male Albanian child") and will suffer persecution because of that membership; or (2) he is a member of a particular social group ("Kulak (landowner) family") and he will suffer persecution because of that membership; or (3) he has an imputed political opinion by reason of his membership of the group referred to in (2) and he will suffer persecution because of that political opinion. Before the Federal Magistrates Court, the appellant maintained the claims he had made before the Tribunal. In essence, the appellant's submission was that the Tribunal erred in not making findings as to whether there were particular social groups properly described as "male Albanian child" and "Kulak (landowner) family". That submission was rejected. On appeal to this Court, the appellant reformulated his claim. As I understood his submission, he accepts that he is now putting his claim on the ground that he has a well-founded fear of persecution for reasons of membership of a particular social group consisting of his family, and that s 91S of the Act must be considered. The appellant also accepts that his well-founded fear of persecution arises because of events surrounding the conduct of Uncle Ded on 25 April 1997. The appellant's argument is put in this way. The relevant family member for the purposes of a consideration of the effect of s 91S is Uncle Ded. However, he has a Convention reason for his fear of persecution because he fears persecution for reasons of his membership of a particular social group, being "Albanian householders who had resisted armed encroachment onto their property". The submission is that there was no reason to disregard Uncle Ded's fear of persecution, and no reason to disregard the appellant's fear of persecution. It followed that the appellant's fear of persecution arose because of his membership of a particular social group, being his family. The Tribunal failed to consider this claim and thereby fell into jurisdictional error. There are a number of reasons why the appellant's argument must be rejected. First, the appellant, with legal assistance and the advantage of the Tribunal's decision in relation to his parents' claims, formulated social groups for the purpose of the Tribunal hearing that were quite different from those formulated in this appeal. Namely, they did not relate to his family and the actions of one particular member of the family. The social groups formulated by the appellant avoided altogether (in terms of the formulation of the social group) an examination of the appellant's family and the actions of one particular member of the family. This point is not decisive, but it is a relevant consideration.


case_text: the particular social group now formulated by the appellant seems to me to be somewhat artificial and it must be questionable whether it comprises a cognisable group in the community (see Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387). It is artificial because it is very general and because it seems to me it could be formulated in a number of other ways. Clearly, it is not my role to decide these issues, but the fact that they arise is clearly relevant to whether the claim was apparent on the face of the material before the Tribunal. They suggest it was not.


case_text: is an appeal from a decision of the Federal Magistrates Court: AZAAC v Minister for Immigration and Citizenship [2008] FMCA 1506. On 11 November 2008, that Court dismissed an application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). The appellant is a male child who was born on 3 June 2004. He was born in Australia and, by reason of the fact that his parents are Albanian nationals, his nationality is Albanian. Throughout the administrative and legal processes which followed his application for a Protection (Class XA) visa ("protection visa"), his father has acted on his behalf. The appellant lodged an application for a protection visa on 28 June 2007. On 23 July 2007, his application was refused by a delegate of the Minister for Immigration and Citizenship. He applied to the Tribunal for a review of the delegate's decision. In a decision handed down on 3 December 2007, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant. On the application made by the appellant to the Federal Magistrates Court for constitutional writs, a federal magistrate held that the Tribunal had not fallen into jurisdictional error, and dismissed the application. The application by the appellant's parents for protection visas


case_text: the federal magistrate, the appellant contended that the Tribunal member had made two errors. First, she had not determined at the outset whether the particular social groups advanced by the appellant were particular social groups for the purposes of the Convention and therefore she had not followed the steps laid down in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389. This error was not said by the appellant to be fatal of itself, but when combined with other errors it was significant. As I understand the federal magistrate's reasons, he accepted that the Tribunal had not made findings about these matters, but he held that this had not led to jurisdictional error. Secondly, it was submitted that the Tribunal member had erred in not undertaking an examination of whether there was a causative link between the fear and the motive for persecution. The Tribunal had failed to consider the evidence relevant to the objective ascertainment of the motives of those who were responsible for the persecution. In rejecting the appellant's argument, the federal magistrate said: "The Tribunal expressly considered the claim that the applicant fears harm as a result of being a child in Albania. It evaluated the evidence presented by the parents on behalf of that claim and examined the country information as well and came to a conclusion that the risks presented to the child stemmed from the blood feud. I can readily conceive of cases where dealing with the subjective element and then the nexus between that and the convention related harm simply upon the basis of an attribution to the child of parental fears would give rise to a jurisdictional error. They would be circumstances where, for example, there was material before the Tribunal providing an objective basis for the fear which is attributed to the child being held for a convention related reason. The only material available to the Tribunal here was either country information that did not relate to convention-related persecution or material that indicated that the perceived harm arose from the existence of the blood feud and its consequences." The grounds of appeal to this Court The original notice of appeal contained five grounds of appeal. Shortly prior to the hearing, the appellant forwarded to the Court an amended notice of appeal which raised three further grounds of appeal. The three further grounds of appeal were that the federal magistrate erred in not holding that the Tribunal had committed jurisdictional error by reason of: "(e) finding that the 'other member' of the family of the Appellant for the purposes of s 91S(a) of the Migration Act 1958 (Uncle Ded) did not suffer fear or persecution for a Convention reason (see Tribunal decision page 19.4 AB 189.4). Particulars The Uncle was a member of the particular social group of Albanian householders who had resisted armed encroachment onto their property. He feared persecution for reason of membership of that particular social group, and further feared that he would receive no protection from the Albanian State, and consequently he had a Convention reason for his fear of persecution. (f) not determining that State prosecution was not available for those in danger of reprisals, when evidence had been led to that effect. (g) not determining that the appellant had a well founded fear of persecution, at least hypothetically, for a Convention reason." In essence, the appellant claims that the Tribunal member committed a jurisdictional error by failing to consider whether Uncle Ded had a Convention reason for his fear of persecution, namely, his membership of a particular social group, being "Albanian householders who had resisted armed encroachment onto their property". The Tribunal member had said that Uncle Ded's fear of persecution arose from the shooting incident and was not Convention related. Of course, there are a number of other issues in addition to the question of whether a particular social group exists for the purposes of the Convention. In Dranichnikov , Gummow and Callinan JJ said (at 394 [26]): "At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason." There is also the issue of State protection. In this case, I do not need to consider the other issues and the issue of State protection because I have reached the conclusion that the Tribunal did not err in not identifying and considering whether Uncle Ded belonged to a particular social group described as "Albanian householders who had resisted armed encroachment onto their property". The claim now made in relation to Uncle Ded was not expressly articulated before the Tribunal and it was not dealt with by the Tribunal. The principles concerning the Tribunal's obligation to deal with claims before it are clear, although their application may give rise to difficulties. I should say that I do not think the principles or their application differ because the claim for membership of a particular social group is made in relation to a third party (Uncle Ded) and not the appellant himself. In Dranichnikov , the Tribunal had not considered a substantial, clearly articulated argument relying upon established facts, that being whether the applicant was a member of a particular social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals (at 394 [24] per Gummow and Callinan JJ). The Tribunal had in fact considered another question which was whether the applicant's membership of a social group being "businessmen in Russia" was a reason for persecution and relevantly nothing more. In taking that approach, the Tribunal had constructively failed to exercise jurisdiction (at 394 [25] per Gummow and Callinan JJ; at 406 [86] per Kirby J; at 408 [95] per Hayne J). The Tribunal's obligation to consider a claim extends beyond those claims which have been clearly articulated. The question of the extent of the Tribunal's obligation to consider a claim not clearly articulated before it was considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1. The Full Court of this Court (Black CJ, French and Selway JJ) said (at 18 [58] and 22 [68]): "The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263 ; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 ; (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. ... Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, "a substantial clearly articulated argument relying upon established facts" in the sense in which that term was used in Dranichnikov . A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal."


case_text: question of the extent of the Tribunal's obligation to consider a claim not clearly articulated before it was considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1. The Full Court of this Court (Black CJ, French and Selway JJ) said (at 18 [58] and 22 [68]): "The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263 ; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 ; (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. ... Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, "a substantial clearly articulated argument relying upon established facts" in the sense in which that term was used in Dranichnikov . A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal."


case_text: appellant's father applied for constitutional writs and his application was heard by Selway J in 2004 and refused: STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 861. The decision of Selway J was upheld by the Full Court of this Court: STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 9. An application for special leave to appeal to the High Court was refused on 16 December 2005. The appellant's application for a protection visa