case_text: Despite the breadth of the term 'in relation to', the cases also make it clear that in deciding the nature and closeness or remoteness of the connection required and therefore whether there is a necessary 'relationship', the legislative context and purpose should be considered (Dawson J in O'Grady at 367, Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services [1995] HCA 36 ; (1995) 184 CLR 301 at 313, Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 221 at [26] - [34] ).


case_outcome: cited

case_text: The width of the meaning of the words 'in connection with', and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68] , Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275.


case_outcome: considered

case_text: The background to the enactment of s 9A ADJR Act was explained by the Full Court of the Federal Court in Chief Executive Officer of Customs v Jiang [2001] FCA 145 ; [2001] 111 FCR 395. O'Loughlin, North and Weinberg JJ considered the history of judicial review of decisions made in the context of criminal prosecutions, including the second reading speech for the Bill introducing the legislation. Their Honours observed: • As a general principle, the civil courts appreciate that it is of vital importance that regulatory bodies and law enforcement agencies not be hindered unduly in their task of investigating full allegations of criminality, that most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts, and that the civil courts generally deny judicial review of such decisions on discretionary grounds (at page 399). • Section 9A ADJR Act (and ss 39(1B)-(1F) and s 39B(3) Judiciary Act ) were introduced to put a stop to the use of what the government regarded as unmeritorious delaying tactics commonly employed in the criminal justice process. The aim of these legislative provisions was to remove collateral access to federal administrative law procedures and remedies in the Federal Court where a prosecution for an offence against a law of the Commonwealth had commenced (at page 400). 55 Reference to the absolute exclusion of jurisdiction in these circumstances was made by Federal Attorney-General Darryl Williams in the second reading speech to the Jurisdiction of Courts Legislation Amendment Bill 2000, Sch 2 of which inserted s 9A ADJR Act and s 39B Judiciary Act . In particular, the Attorney-General said: 'The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies. ... Defendants will not, at any time, be able to use the AD(JR) Act to challenge decisions to prosecute. Nor will they be able to use that act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced. Further, defendants in state and territory courts will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court to review decisions of Commonwealth officers made in the prosecution process. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on state and territory supreme courts. Section 39B of the Judiciary Act is also to be amended so that, when a prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court will not have jurisdiction to hear an application made by the defendant in relation to a decision in the criminal justice process relating to that offence.' (Index to Parliamentary Debates (Hansard) 2000 First Session of the Thirty-ninth Parliament, House of Representatives vol 231, 8 March 2000 p 14111) 56 I also note similar comments in the Explanatory Memorandum to the Jurisdiction of Courts Legislation Amendment Bill 2000 p 28. 57 Further, while it is clear that the mischief the legislation intended to address was unmeritorious delaying tactics in the criminal justice process caused by collateral access rights of defendants to federal administrative law procedures and remedies, the legislation is clear on its face. Section 9A contains no reference to, and nor should it be read in such a way as to require, an analysis of the motives of an applicant in bringing an Application for an Order of Review of a decision to obtain a search warrant. The motives of the applicant in seeking review of the related criminal justice process decisions are irrelevant. In applicable circumstances, such as those before me, the jurisdiction of the Federal Court to review an administrative decision is excluded. 58 The manner in which the application is framed with respect to the second respondent raises further issues which in my view should be addressed separately, although the first respondent's submissions concerning s 9A ADJR Act also encompassed the position of the second respondent.


case_title: Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR


case_text: There is no doubt that a decision to issue a search warrant is a decision under an enactment in this case, the Crimes Act and accordingly reviewable under the ADJR Act: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 at 152-153, Salerno v National Crime Authority (1997) 75 FCR 133, Harts Australia Ltd v The Commissioner, Australian Federal Police [2001] FCA 175. In my view however, the application of the applicant concerning the decision of the second respondent to issue the search warrant is an application 'in relation to a related criminal justice process decision ' for the reasons I discussed earlier in the context of the first respondent. Accordingly, the jurisdiction of the Federal Court is excluded under s 9A ADJR Act in respect of the Application for an Order of Review of the decision of the second respondent to issue the warrant.


case_text: As I said earlier in this judgment, a 'decision' under the ADJR Act requires an element of finality, rather than acts preparatory to the making of a decision (Mason CJ in Bond at 336). Further, the meaning of a decision made 'under an enactment' was explained by Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 as follows: 'The determination of whether a decision is "made... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made... under an enactment" if both these criteria are met.' (at 130) 75 Mr Porter for the first respondent submitted that a decision to obtain a warrant is not a 'decision under an enactment' for the purposes of the ADJRA because it does not satisfy the second requirement in Griffith University . That is, the decision does not itself confer, alter or otherwise affect legal rights or obligations hence the decision of the first respondent is not reviewable under the ADJR Act. 76 Unfortunately the Court has not had the benefit of submissions from the applicant in respect of this issue. In my view it is arguable as a general proposition that a decision to obtain a search warrant is a reviewable decision under the ADJR Act (or the Judiciary Act ). However in my opinion the point is moot because: • if the decision is not reviewable under either Act (although I note that the applicant has not claimed that the Judiciary Act is relevant in this case) the applicant has no case • even if the decision were reviewable under either the ADJR Act (or the Judiciary Act ), the application to review this decision of the first respondent is rendered fatal by the application of s 9A ADJR Act (and s 39B(1C) and (1D) Judiciary Act which is in similar terms in the context of that Act to s 9A ADJR Act). 77 Accordingly, to that extent it is unnecessary for me decide whether the decision is a reviewable decision or not. 78 The first respondent has objected to the competency of the application in so far as it concerns the second respondent on the basis that the Application for an Order of Review was made out of time. Section 11(1) ADJR Act requires that an application to the court for an order of review shall be lodged with the court during the period prescribed by s 11(3). Mr Porter for the first respondent submitted: • although the application was with respect to the conduct of the second respondent, it was with respect to conduct for the purpose of making a decision to issue a warrant • 'decision' includes conduct for the purpose of making a decision • section 11(3)(b)(iii) applies to this decision, being a decision for which no reasons were sought or provided by the second respondent • section 11(3)(b)(iii) provides that an application for an order of review must be brought within 28 days of the 'day on which a document setting out the terms of the decision is furnished to the applicant' • the document setting out the terms of the decision is the warrant itself which was provided to the applicant on 22 September 2004 • within the terms of s 11, the time to make an application in relation to that decision expired on 20 October 2004 • the application in this case was brought on 24 August 2006, some 22 months out of time • accordingly, the applicant requires leave to bring the application, but has not sought leave • the first and second respondent oppose the grant of leave to the applicant to bring the application. 79 In my view, these submissions accurately summarise the position with respect to this application. 80 The applicant did not dispute that leave was necessary to hear his application, and at the hearing Mr Asuzu made an application for an extension of time for the application to be heard. At both the hearing and in his written submissions Mr Asuzu stated that the applicant had spent 16 days in prison.


case_text: Earlier in this judgment I considered the meaning of 'decision' and 'in connection with' in the context of s 9A(4)(a). The differences between 'in connection with' and 'in relation to' are, as a general proposition, minimal (cf French J in Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303). Indeed, related criminal justice process decisions are defined by the fact that there is a 'connection' between a decision and some other event, such as the issue of a warrant. 'In relation to' was explained by McHugh J in O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 in the following terms: 'The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. ' (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (Cth) [2002] FCAFC 226 at [68] )


case_text: There is no doubt that a decision to issue a search warrant is a decision under an enactment in this case, the Crimes Act and accordingly reviewable under the ADJR Act: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 at 152-153, Salerno v National Crime Authority (1997) 75 FCR 133, Harts Australia Ltd v The Commissioner, Australian Federal Police [2001] FCA 175. In my view however, the application of the applicant concerning the decision of the second respondent to issue the search warrant is an application 'in relation to a related criminal justice process decision ' for the reasons I discussed earlier in the context of the first respondent. Accordingly, the jurisdiction of the Federal Court is excluded under s 9A ADJR Act in respect of the Application for an Order of Review of the decision of the second respondent to issue the warrant. 73 As I noted earlier in this judgment, a reviewable decision under the ADJR Act is, inter alia , a decision of an administrative character made under an enactment. There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. Authority also indicates that: • A decision to seize material in the course of execution of a search warrant is reviewable under the ADJR Act: Drummond J in Harts Australia Limited v Commissioner, Australian Federal Police [2001] FCA 175 at [22] . • A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). • Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman .


case_text: The width of the meaning of the words 'in connection with', and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68] , Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275. 51 So, in answering the two questions I posited before: 1. To the extent that the decision of the first respondent to obtain a search warrant was a decision to which the Act applied (and I shall consider this point shortly in my judgment) there appears no dispute that the search warrant relates to events the subject of charges the applicant is currently facing in the courts. In this respect, it would appear that the decision of the first respondent to obtain the search warrant is a 'related criminal justice process decision', within the meaning of s 9A(4)(a)(i) or (iii), with respect to the offences for which the applicant is currently facing prosecution, in that the decision of the first respondent to obtain the search warrant was 'in connection with' the investigation, or more obviously 'in connection with' the issue of a search warrant. The first respondent sought a search warrant to search the premises of the applicant; it appears that the applicant was charged with criminal offences on the basis of the evidentiary material obtained during the execution of the search warrant. The 'relationship' or 'connection' is stark. (I note that the fact that obtaining a search warrant and seizing material pursuant to it is conduct 'in connection with' an investigation was also the view of the Full Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 277.) 2. It therefore also follows that the application of Mr Gant is 'in relation to' a related criminal justice process decision for the purposes of s 9A. 52 In light of these principles, prima facie s 9A(1) applies and excludes the jurisdiction of the Federal Court to review the decision of the first respondent in relation to its decision to obtaining the search warrant which was issued by the second respondent. 53 However the applicant has submitted, inter alia , that the Court has discretion to determine whether search warrants are obtained with due process and that the Court also has discretion to determine whether the applicant's challenge to the process resulting in the search warrant was a delaying tactic or unmeritorious. In my view these submissions reflect a complete misunderstanding of s 9A ADJR Act and the policy behind it. Section 9A is framed in absolute terms. Where the conditions specified in s 9A(1) are satisfied as in my view, they are in the case before me the section states unequivocally that the Court has no jurisdiction to hear an application of the kind brought by the applicant. To express it more simply, there is no discretion in the Federal Court to review a decision to obtain a search warrant where the applicant is a defendant to a prosecution which relates to that decision before a Court, and the applicant after the commencement of the prosecution seeks review of that decision. 73 As I noted earlier in this judgment, a reviewable decision under the ADJR Act is, inter alia , a decision of an administrative character made under an enactment. There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. Authority also indicates that: • A decision to seize material in the course of execution of a search warrant is reviewable under the ADJR Act: Drummond J in Harts Australia Limited v Commissioner, Australian Federal Police [2001] FCA 175 at [22] . • A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). • Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman .


case_outcome: applied

case_text: However, despite the terms in which the application is framed, it is not automatically clear from the remainder of the file documentation whether it is in fact all search warrants for which review is being sought in this Court, or only the search warrant issued on 17 September 2004 and executed on 22 September 2004 by the second respondent. 81 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J articulated principles relevant to an application for an extension of time to make an application for an order of review under the ADJR Act. In that case his Honour noted that s 11 of the ADJR Act does not set out any criteria by reference to which the court's decision to extend time for an application for review under s 5 is to be exercised, however the following principles appeared to be applicable: '1. Although the section does not, in terms place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained... It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time... 2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished... 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension... 4. However, the mere absence of prejudice is not enough to justify the grant of an extension... In this context, public considerations often include... A delay which may result, if the application is successful, in the unsettling of other people... or of established practices... is likely to prove fatal to the application. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted... 6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion...' (pp 348-349) 82 Applying these principles to the case before me, it is my view that, on balance, the leave sought by the applicant for an extension of time should not be granted. My reasons are as follows: 1. Although the fact that the applicant was in prison for 16 days is an acceptable explanation for some delay in making an Application for an Order of Review, it is not an acceptable explanation for 22 months delay in making that application. No explanation has been provided by the applicant as to the length of the delay in making an Application for an Order of Review. 2. As I have already indicated in my judgment, a number of particulars in the application with respect to the second respondent are, in my view, simply wrong (for example, claims to the effect that the second respondent acted outside her powers in issuing a search warrant with respect to offences allegedly occurring outside Queensland), and accordingly the merits of the application in this respect do not support an extension of time. 3. Although it is awkward to say in the context of criminal proceedings that the Commonwealth would be 'prejudiced' by a grant of an extension of time in relation to this application, I note that criminal proceedings in the Magistrates Court at Brisbane in relation to the charges against the applicant are currently part-heard. As a matter of public policy, it would in my view be undesirable to allow process to continue in the Federal Court in relation to the circumstances involving the issue of a search warrant by the second respondent, to improperly interfere with those proceedings in the Magistrates Court. 4. The potential for an abuse of process to occur where an applicant seeks judicial intervention from different courts in relation to the same matter is, in my view, a factor to take into consideration in relation to whether to extend time. This is highlighted in particular by the submissions of Mr Asuzu that it is necessary to air claims before the Federal Court that either: (a) no proper application for a search warrant nor supporting sworn affidavit of the relevant AFP officer were produced to the second respondent, and accordingly the issue of the search warrant by the second respondent was pursuant to a flawed process, or (b) if those documents existed, the application for a search warrant and the supporting sworn affidavit of the relevant AFP officer which were produced to the second respondent contained misleading statement and falsehoods, which also resulted in the issue of the search warrant by the second respondent being pursuant to a flawed process. Mr Asuzu submitted that these documents were key material in relation to the Application for an Order of Review of the conduct of the second respondent. Mr Asuzu also submitted that notices to produce were served on, inter alia , the second respondent in relation to the application for the search warrant and the supporting affidavit, but no documents have been produced. However I note: (a) no notices to produce in relation to these documents have been filed with the Court (b) at the hearing, a letter to the applicant was tendered indicating that the second respondent has the supporting affidavit of the AFP officer relevant to the issue of the search warrant but the second respondent was not prepared to produce the affidavit as to do so would be contrary to the public interest in light of current criminal proceedings involving the applicant before the Magistrates Court (c) as submitted by Mr Porter with reference to the affidavit of Mr Barry Cosgrove, a solicitor with the Australian Government Solicitor, filed 27 October 2006, the applicant has already endeavoured to have these documents produced by summons in the Magistrates Court in Brisbane, however the Magistrate set the summonses aside on 12 July 2006. Any attempt to seek production in this Court of either the AFP application for the issue of the search warrant or the supporting affidavit would, in my view, smack of abuse of process in light of preceding events in the Magistrates Court at Brisbane, and I am not persuaded that the prospect of further action by the applicant to seek production of this material in the Federal Court constitutes reasons for granting an extension of time of his Application for an Order of Review. 5. Finally, the applicant, both in his application and through his Counsel, has made strong submissions to the effect that his case involves individual liberty and freedom, and effective control of abuse of police powers. These are serious issues. However as I have already stated in my judgment, the jurisdiction of this Court to hear the applicant's application for order of review in relation to the relevant related criminal process decisions in this case is excluded by s 9A ADJR Act. In my opinion, this conclusion and the resultant lack of merit in the substantive case of the applicant strongly militates against any utility in extending time to make an application for order of review. 83 The application sought an order of review of the conduct of the third respondent, in that the third respondent allegedly: • failed to supervise the proper issuance of search warrants in the State of Queensland • permitted an improper procedure to be used to issue search warrants, whereby a justice of the peace was allowed to issue search warrants for an out of State offence instead of a Magistrate. 84 As I have already indicated in my judgment, the procedure to issue a search warrant by a Justice of the Peace rather than a Magistrate in respect of an out of State offence was a proper procedure under the Crimes Act . Accordingly, in my view this aspect of the application with respect to the third respondent is not competent. 85 In relation to the balance of the claimed conduct of the third respondent, the applicant particularised his claims as follows: • the third respondent had failed to adequately appoint qualified individuals to the office of the justice of the peace, that know and respect the provisions of the applicable law and/or Act • the third respondent had failed to supervise the operation of the Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) in Queensland and have aided and abetted their actions by refusing to disclose the grounds for the search warrant applications by the said Australian Federal Police • the third respondent simply accredits persons who act mechanically or as mere rubber stamps or corrupt and malicious Australian Federal Police agents without due regard to the duties created under the Act.


case_text: As I noted earlier in this judgment, a reviewable decision under the ADJR Act is, inter alia , a decision of an administrative character made under an enactment. There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. Authority also indicates that: • A decision to seize material in the course of execution of a search warrant is reviewable under the ADJR Act: Drummond J in Harts Australia Limited v Commissioner, Australian Federal Police [2001] FCA 175 at [22] . • A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). • Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman .


case_title: Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275


case_text: Secondly, even if there was conduct of the second respondent which was capable of being reviewed under s 6 ADJR Act, the courts approach with caution applications for an order of review in relation to conduct where the conduct has been superseded by a decision. As pointed out by Sackville J (Jenkinson J agreeing) in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 22-23: 'In particular, where a decision has been made, the Court will ordinarily review that decision, and should be cautious about reviewing the conduct engaged in for the purpose of making the decision.' (see also Kiefel J at 40, and note the commentary on this issue in G Flick Federal Administrative Law , Thomson Lawbook Co par 3116) 70 In this case a decision was made by the second respondent two years ago to issue a search warrant. In my view, if any review were to be undertaken by the Court it should be of that decision, however as already indicated the Court lacks jurisdiction to do so under s 9A ADJR Act. It is clear that the decision of the second respondent to issue the search warrant is a 'related criminal justice process decision', within the meaning of s 9A(4)(a)(i) or (iii), with respect to the offences for which the applicant is currently facing prosecution, in that the decision of the second respondent to issue the search warrant was 'in connection with' the investigation, or more obviously 'in connection with' the issue of a search warrant. The application of the applicant for an order of review of that decision is also clearly 'in relation to' that decision.


case_text: The application proceeds on the basis that review is sought of the warrant executed by the second respondent in that she acted beyond power in executing the search warrant. Further, the grounds of the application refer to the justice of the peace acting in breach of her duty, in not giving the search warrants proper consideration and perverting the course of justice. 17 As is clear from correspondence attached to the applicant's affidavit sworn 24 August 2006, only one of the search warrants executed on the applicant's residence, vehicles and business premises was executed by the second respondent. Therefore in seeking to review the actions of the second respondent, the application can only be referring to one search warrant. It is also clear that the only search warrant attached to the applicant's affidavit sworn 24 August 2006, or indeed appearing anywhere in the documentation before this Court, is the search warrant executed by the second respondent on 22 September 2004. 18 Further, in submissions, both written and oral, it became clear that both parties were proceeding on the basis that this application did in fact only relate to the warrant issued by the second respondent. 49 Earlier in this judgment I considered the meaning of 'decision' and 'in connection with' in the context of s 9A(4)(a). The differences between 'in connection with' and 'in relation to' are, as a general proposition, minimal (cf French J in Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303). Indeed, related criminal justice process decisions are defined by the fact that there is a 'connection' between a decision and some other event, such as the issue of a warrant. 'In relation to' was explained by McHugh J in O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 in the following terms: 'The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. ' (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (Cth) [2002] FCAFC 226 at [68] ) 50 Despite the breadth of the term 'in relation to', the cases also make it clear that in deciding the nature and closeness or remoteness of the connection required and therefore whether there is a necessary 'relationship', the legislative context and purpose should be considered (Dawson J in O'Grady at 367, Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services [1995] HCA 36 ; (1995) 184 CLR 301 at 313, Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 221 at [26] - [34] ).


case_outcome: followed

case_text: The expression 'in connection with' is a commonly-used legislative expression. It has been the subject of extensive judicial comment. A useful commentary on the expression in the context of the ADJR Act can be found in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 577 where Wilcox J, in considering the meaning of 'in connection with' in s 5(1)(b) of the Act, observed that: 'The words "in connexion with" have a wide connotation, requiring merely a relation between one thing and another. They do not necessarily require a causal relationship between the two things... They may be used to describe a relationship with a contemplated future event.' (at 591-592)


case_text: In any event, Mr Porter for the first respondent also submitted that even if the applicant articulates his complaint as being in respect of the 'conduct' of the second respondent in issuing the warrant, s 9A(1) is relevant because the section applies not just to an application to review criminal justice process decisions, but to an application 'in relation to' a criminal justice process decision. Two issues flow from this proposition, namely: • As I discussed earlier in my judgment the phrase 'in relation to' has a wide meaning, although it should also be considered in the context in which it is found. It is arguable that an application for an order of review of conduct in the context of which a criminal justice process decision has been made, is itself 'an application in relation to a criminal justice process decision'. • I note the particular wording of s 9A, namely that it excludes from the jurisdiction of the Court applications in relation to a related criminal justice process decision. This may be contrasted with, for example, the circumstances before Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 where s 485 of the Migration Act 1958 (Cth) specifically provided that the Federal Court did 'not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subs 475(2)'. In that case Merkel J found that although the legislation excluded judicial review of decisions, it did not exclude the operation of s 6 ADJR Act to review conduct. In the case before me however s 9A excludes applications, in relation to decisions , which could include conduct. 72 It is not strictly necessary to decide this point because of the views I have taken about the claim of the applicant in relation to the decision of the second respondent, and the fact that it is not appropriate to review the conduct to which the applicant has referred because it has been superseded by a decision. However, to avoid uncertainty, I am of the view that s 9A operates to exclude an application for review of a person's conduct in the course of making a related criminal justice process decision. I take this view because: • as a matter of policy, it would defeat the intention of s 9A if a defendant could seek review under s 6 of such conduct, which could have the effect of unmeritoriously delaying criminal proceedings in another court • it would be absurd in light of the legislative intention in enacting s 9A if an application for an order of review of a criminal justice process decision was excluded from the jurisdiction of the Federal Court, but an application for an order of review of conduct relevant to that criminal justice process decision was not so excluded • the language of s 9A has, it appears, been drafted deliberately widely to encompass applications in relation to such conduct.


case_title: PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services [1995] HCA 36 ; (1995) 184 CLR 301


case_text: His Honour also adopted comments of MacFarlane J in Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638: 'One of the very generally accepted meanings of "connection" is "relation between things one of which is bound up with or involved in another"; or again "having to do with". The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase "having to do with" perhaps gives as good a suggestion of the meaning as could be had. ' (at 639)


case_title: Salerno v National Crime Authority (1997) 75 FCR 133


case_title: Wilhelm v McKay [2005] FCA 792


case_title: Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303


case_text: the course of the hearing of the appeal, I drew the attention of counsel for the appellants to the fact that the orders of 1 April and 14 April 2008 resulted from exercises of judicial discretion. An appeal from a judgment involving an exercise of judicial discretion is not to be resolved according to the manner in which the appeal court thinks that the discretion should have been exercised. As Dixon, Evatt and McTiernan JJ said in the well-known passage in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. I invited counsel for the appellants to indicate on what wrong principle the federal magistrate had acted, what extraneous or irrelevant matters he had allowed to guide or affect him, what mistakes of fact he had made, or what material consideration he had failed to take into account. Counsel for the appellants contended that the federal magistrate had failed to give sufficient weight to the fact that Mr Lee was not fluent in English and did not have the benefit of an interpreter, to the fact that the appellants were without legal representation, and to the fact that Mr Lee's father was seriously ill in China. Counsel for the appellants also contended that the federal magistrate had acted upon a wrong principle, by failing to apply the correct principle. The correct principle advanced was that a party should not be made to suffer a judgment for a large sum of money without being entitled to a trial and judgment on all of the issues in a proceeding to which that person is a party. The principles enunciated in House as those upon which an appeal court approaches the exercise of discretion by the court appealed from do not speak of the weight to be given to various considerations. Those principles are concerned with whether or not the judge at first instance took into account irrelevant matters at all, or failed to take into account all material considerations. It is very clear from the reasons for judgment he gave on 14 and 15 April 2008 that the federal magistrate took into account the fact that the appellants were not legally represented and that Mr Lee's father was seriously ill in China. As the transcript of what occurred on 14 April 2008 shows, his Honour was also concerned to ensure that Mr Lee understood what was going on, despite his lack of English. The case was stood down from 10.30 am until 2.15 pm because of the unavailability of an interpreter in the morning. In substance, the hearing on 14 April 2008 was conducted through an interpreter. Even on 1 April 2008, when no interpreter was present, the federal magistrate took pains to ensure that Mr Lee would understand the order that was made. His Honour stressed that Mr Lee should see a solicitor about the order. If it were a matter of the weight to be attached to these considerations, there is much that could be said about the conclusion to which the federal magistrate should have come. In the first place, there is the account by Mr Lim of the attempted inspection of documents on 19 March 2008. This account was never refuted by Mr Lee, despite Mr Lee filing two subsequent affidavits. Even when he had an interpreter available to him, the only response Mr Lee made to this on 14 April 2008 was to allege that the solicitor had lied about the time that he had arrived at the offices of the appellants' former solicitors, to carry out the inspection of documents. There was no attempt to counter Mr Lim's allegation that Mr Lee had demanded the payment of $3,000 before he would comply with the court's order. There was no attempt to refute the allegation that he had maintained this demand, despite the advice of his own solicitor that he was obliged to comply with the order and could not demand money before doing so. When he appeared before the federal magistrate on 1 April 2008, Mr Lee did not attempt to explain why it was that the appellants' former solicitors had ceased to act for them. No explanation for the fact that the appellants had become unrepresented was ever offered, to the Federal Magistrates Court or to this Court. On 14 April 2008, when he was asked about attempts he had made to obtain legal representation, Mr Lee made it clear that he had not made any serious attempt. He had telephoned one solicitor who refused to act, and requested his former solicitors to find a replacement. It is not surprising that the federal magistrate regarded this as a failure to take an opportunity given.


case_text: in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, the High Court revisited the question of late applications for amendment of pleadings, and the relevance to such applications of the powers and principles of case-management. The High Court reversed the order of the primary judge allowing the plaintiff to make substantial amendments to its claim at the start of the trial. At [92], Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to the fact that case-management "is now an accepted aspect of the system of civil justice administered by courts in Australia." At [98], their Honours said with reference to the rule of Court conferring case-management powers on the Supreme Court of the Australian Capital Territory: Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. At [111], their Honours concluded: An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit an amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. The present case is not one concerning a late application for amendment of pleadings. In many senses, it is more serious. It is a case of repeated refusals, not merely failures, to comply with orders of the court requiring the appellants to make discovery of documents and to allow Ms Wang's solicitor to inspect their discovered documents. Mr Lee had persisted with a demand for payment as a pre-condition for providing inspection of documents, despite advice from his own solicitor that this was not a course open to him. Even in the face of deadlines specified by the federal magistrate for the performance of obligations under earlier orders, Mr Lee proposed leisurely timetables for the performance of those obligations and a further adjournment of the trial, which had already been adjourned once. The circumstances in which the appellants had ceased to be represented by their solicitor were never revealed, making it more difficult for them to rely on lack of representation as a factor justifying the adjournment of the trial. It is significant that, despite the lack of representation and Mr Lee's difficulty with English, the two affidavits of 7 and 9 April demonstrated to the federal magistrate that Mr Lee had access to someone who was sufficiently fluent in English, and had sufficient understanding of the court processes, to produce affidavits in something close to the proper form. It would have been open to the federal magistrate to reach the conclusion that Mr Lee was attempting to postpone an inevitable judgment against the appellants on Ms Wang's claim, and that the need to visit his father in China was raised as part of such an attempt. The fact that the federal magistrate was kinder to Mr Lee than he needed to be, by not making such a finding, should not lead to a successful appeal from the exercise of the federal magistrate's discretion. If the powers given by rules of court to give judgment against a defaulting party were never to be exercised, because of a supposed principle that judgment for a large sum of money should not be given without a trial, the grants of express powers by rules would be hollow. Case-management would be deprived of its only real sanction against a party who, while resisting a claim for a substantial sum of money, defaults persistently in complying with orders of a Court. The framers of rr 13.03A and 13.03B of the Federal Magistrates Court Rules cannot have intended that those rules should be subject to such a principle that would enable a party against whom a substantial monetary claim is made to defend that claim by failing persistently to take steps necessary to bring the claim on for trial. Any principle derived from Freeman is much more limited than that suggested by counsel for the appellants. Freeman is best regarded as turning on its particular circumstances, and as belonging to an era before the broad adoption of case-management principles. As the recent judgment in Aon shows, case-management principles have assumed a greater importance than they were thought to have had, even as recently as 1997, when JL Holdings was decided. It is clear from the second passage I have quoted from Aon in [36] above that the principle stated in JL Holdings should no longer be followed. If there remains a narrower principle derived from Freeman than that suggested by counsel for the appellants, such a principle could not be applicable in the present case. There is no injustice in judgment for a large sum of money against Heng V and Mr Lee, having regard to Mr Lee's apparent determination not to comply with repeated orders requiring him to produce for inspection all of the appellants' discoverable documents. Conclusion


case_text: I accept that Tribunals, and particularly lay Tribunals, sometimes assert that there is 'no evidence' on an issue when they mean that, although there is some evidence on the issue, they do not regard the evidence as sufficient to support a particular finding (see, for example A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [23] - [27] and Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18] ). In every case the meaning intended to be conveyed by the Tribunal is to be determined by reference to the language used by the Tribunal understood in the context provided by the Tribunal's reasons for decision as a whole. In this case, having twice asserted that there was 'no evidence' of a particular character, the Tribunal went on to state that the appellant had not provided 'any information which would support [his] claim other than his own speculative assertion' . I conclude that the Tribunal's language, understood in the context provided by its written reasons as a whole, suggests that the Tribunal intended to convey that there was no evidence at all on the two matters identified by it.


case_title: Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30


case_text: I accept the submission of the first respondent that the above submission is inconsistent with the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. While the full import of that decision awaits clarification, the majority judgment makes clear that s 424A has a more limited operation than was previously assumed. It had been argued before the High Court that passages from the appellant's statutory declaration that the Tribunal regarded as inconsistent with his evidence at his hearing should have been the subject of a notice under s 424A of the Act because those inconsistencies were the reason, or part of the reason, for the Tribunal's decision to affirm the decision under review. 24 The majority judgment in SZBYR at 615-617 at [17]-[21] makes clear that, in the circumstances of that case, the relevant parts of the statutory declaration of the appellant in support of his claims to be entitled to a protection visa were not 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review' . The circumstances of SZBYR are not in this respect distinguishable from the circumstances of this case. I therefore reject the submission of the appellant that the Tribunal was obliged to comply with s 424A of the Act with respect to the information available to it concerning the content of his protection visa application. It is therefore unnecessary for this Court to determine whether the Federal Magistrate erred in finding that the decision of the Tribunal was not based on an inconsistency between what the appellant said in his visa application and what he said to the Tribunal. 25 The second ground of appeal also fails. 26 The appeal will be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 18 September 2007 Counsel for the Appellant: Mr R Turner Solicitor for the Appellant: Parish Patience Immigration Counsel for the Respondent: Mr D Goodwin Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 1 August 2007 Date of Judgment: 18 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1461.html


case_title: Habib v Director-General of Security [2009] FCAFC 48 , 175 FCR 411

case_text: the absence of such an opportunity to respond to the additional concerns of the Tribunal, it is nevertheless considered that there has been no denial of procedural fairness such as to warrant the Tribunal decision being set aside. The Applicant was clearly on notice that the Tribunal had considerable reservation in respect to letters such as the ones upon which he sought to rely. The opportunity was extended to him to advance such submissions in respect to this more generally expressed concern in such manner as he saw fit and to advance such further evidence as he considered appropriate. The additional factors relied upon by the Tribunal were but further factors in support of a conclusion that letters such as the June 2008 letter were to be given little (if any) weight. A necessity to expressly raise with the Applicant the more specific concerns of the Tribunal may have arisen had the Tribunal sought to rely on those concerns for a purpose other than supporting its conclusion as to the weight to be given to the letter. Albeit arising in the context of an appeal from a decision of the Administrative Appeals Tribunal, such was the concern of the Full Court in Habib v Director-General of Security [2009] FCAFC 48 at [71] , [2009] FCAFC 48 ; 175 FCR 411 at 429 per Black CJ, Ryan and Lander JJ. It is not incumbent upon the Tribunal to bring to the attention of a party before it each and every particular concern it may have in respect to a particular document such as the June 2008 letter. To do so would be to come perilously close to, if not to trespass into, a requirement that the Tribunal expose its tentative reasoning process for scrutiny prior to decision. The opportunity guaranteed by s 425 of the 1958 Act " to give evidence and present arguments ", like the content of the rules of natural justice ( Habib, supra , at [77], 175 FCR at 430 per Black CJ, Ryan and Lander JJ) is to be interpreted and applied in a " practical " manner. Although reservation is expressed as to the manner in which the learned Magistrate reached her conclusion, it is not considered that the Tribunal denied the Applicant procedural fairness. Concurrence is expressed with the conclusion as ultimately reached by the Federal Magistrate. It follows that the Application for an extension of time should be granted but that the Appeal should be dismissed. There is no reason why costs should not follow the event.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: extension of time may be granted where there are " special reasons ": O 52 r 15(2). When considering this provision in Jess v Scott (1986) 12 FCR 187 , Lockhart, Sheppard and Burchett JJ observed at 195: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.


case_text: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 , Emmett, Kenny and Jacobson JJ reviewed the constraints imposed by s 422B of the Migration Act 1958 (Cth) ("the 1958 Act"), being a provision contained in Part 7 Division 4 of that Act. In doing so they observed that " there was nothing in Division 4 to indicate that any of the procedural powers contained in it were to be used fairly " and that " it was possible that those powers could be used in ways that were not fair, without infringing the procedural requirements of Division 4 ": [2009] FCAFC 83 at [18] . Their Honours further observed: [68] While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO's Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case ( VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [64] ). WACO's Case does not establish any new principle. Because the June 2008 letter was forwarded after the conclusion of the hearing, no opportunity thus presented itself to the Tribunal to confront the Applicant with those further concerns that emerged during the preparation of its reasons for decision, unless the Tribunal chose to convene a further hearing. But no generally expressed " unfairness " arose as a result of the manner in which the Tribunal proceeded and no jurisdictional error is exposed. Considerations as to whether a document is a forgery or whether there are other reasons why a document should be given little or no weight may presently be left to one side. Of present relevance is the fact that the Applicant had been " sufficiently alerted " by the Tribunal as to its concerns in respect to documents such as the June 2008 letter. To go further and impose upon the Tribunal a requirement to alert the Applicant to each and every factor which may weigh upon the Tribunal when assessing the weight to be given to that letter would be to impose a requirement to disclose its deliberative process.


case_text: the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.


case_title: SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566


case_title: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314


case_title: SZBEL v Minister for Immigration [2006] HCA 63 , 231 ALR 592


case_title: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1


case_outcome: affirmed

case_text: Federal Magistrate dismissed the proceeding on 31 March 2009: SZMRS v Minister for Immigration and Citizenship [2009] FMCA 263. An Application for an Extension of Time to file and serve a notice of appeal, a supporting Affidavit and a Draft Notice of Appeal were filed in this Court on 23 April 2009. The Draft Notice of Appeal identified the Ground of Appeal as follows: ... the Magistrate made an error in the finding that there was no jurisdictional error. The Applicant appeared before this Court on the hearing of the Application and the Appeal on 5 August 2009. He appeared unrepresented although he did have the assistance of an interpreter. As events transpired, the services of the interpreter proved unnecessary. The Applicant was able to follow the oral submissions advanced on behalf of the Minister by his Counsel.


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 , 206 ALR 471


case_text: has been further observed that " [t]he discretion to extend time is given for the purpose of enabling the court to do justice between the parties ": WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] per Lee, Nicholson and Finkelstein JJ. The discretion to grant an extension of time is obviously not confined to those circumstances in which an appeal would thereafter succeed. An extension may be granted where, to do justice between the parties, the Court should consider and resolve a case on its merits rather than resolving it by reference to a failure to comply with a procedural requirement. In circumstances such as the present, where it is considered that an applicant seeking an extension of time has a case of some merit, where the extent of the delay is minimal and where no prejudice has been occasioned to the respondent, an extension of time should normally be granted. In the present proceeding, an extension of time is granted pursuant to O 52 r 15(2) extending the time within which a Notice of Appeal may be filed to 23 April 2009. The draft of the proposed Notice of Appeal as filed on that date is to be treated as the Notice of Appeal .


case_text: the Federal Magistrate it was contended that the June 2008 letter provided corroborative evidence and had been rejected upon a " positive basis " which had not been put to the Applicant. In advancing this contention, reliance was placed upon the following observations of French J (as His Honour then was) in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912: [36] Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility. The Federal Magistrate concluded: [42] The June 2008 Letter clearly contained a spelling mistake in its last sentence and the name of the author was spelt differently in the June 2008 Letter. Whilst the Tribunal stated that it did not give the June 2008 Letter any weight and stated that the June 2008 Letter was " dubious in other ways ", the Tribunal referred in particular to the blacked out banner and the spelling mistakes. Certainly, it was open to the Tribunal to have regard to the spelling mistakes in characterising the letter as " dubious ". The blacked out banner, whilst forming part of the Tribunal's expression that the June 2008 Letter was " dubious ", did not cause the Tribunal to find that the June 2008 Letter was a forgery. Rather, the weight given by the Tribunal to the content of the June 2008 Letter provided no support to the " genuineness " of the Applicant's claims that his father was a vice president of the local Awami League. [43] In the circumstances, I am satisfied that the consideration by the Tribunal of the June 2008 Letter did not reflect a positive finding that the document was not genuine. Rather, the June 2008 Letter was simply a document that the Tribunal did not find provided any further corroborative evidence in respect of the Applicant's claims. With great respect to the learned Federal Magistrate, any conclusion as to whether or not there has been jurisdictional error by reason of a denial of procedural fairness is not to be confined to those circumstances where there has been " a positive finding that [a] document was not genuine ". If the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314.


case_outcome: discussed

case_text: The principles that apply to transfer are well settled. In National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155, at 162, a Full Court (Bowen CJ, Woodward and Lockhart JJ) said that: " The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. " The Court observed that the power conferred by s 48 of the Federal Court of Australia Act 1976 (Cth) recognises the national character of the Court. The Court added, at 162: " The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. ... Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely. " 7 Although this proceeding has been commenced in the Victorian District Registry of the Court, the case has no ties whatsoever to Victoria. The applicant resides in Queensland. Both respondents are resident in Queensland. Similarly, all events underlying the dispute occurred in Queensland. In any other case, all the relevant factors would support the contemplated transfer. The applicant submits, however, that the respondents will be subject to a conflict of interest if the matter is transferred to Queensland. It is true that the respondents are a registrar and judge whose responsibilities in large part concern the work of the Court in Queensland. It does not follow from this, however, that the applicant's case cannot properly be dealt with in the Queensland District Registry, which has the benefit of more than one registrar and judge. 8 For these reasons, I would order, pursuant to O 10 r 1(2)(f) of the Federal Court Rules 1979 , that proceeding VID 1592 of 2005 be transferred to the Queensland District Registry of this Court . I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 7 April 2006 Counsel for the Applicant: The Applicant appears in person Counsel for the Respondents: The Respondents did not appear Date Submissions Received: 8 March 2006 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/384.html


case_text: On 19 October 2006 the then Minister for Immigration and Multicultural Affairs, acting personally, decided to cancel Chaouki Nassif's visa pursuant to s 501(2) of the Migration Act 1958 (Cth). Mr Nassif has applied for an order quashing the decision of the Minister. By his amended application, Mr Nassif claims that the Minister failed to warn him that she did not intend to treat the best interests of a child, namely Joshua Young, as a primary consideration in making the decision, and additionally failed to consider whether she was required to treat Joshua's best interests as a primary consideration (see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273). Joshua, who at the time of the Minister's decision was 12 years old, is the son of Mr Nassif's fiancée, Ms Sharon Young. 2 It is uncontentious that the Minister did not advise Mr Nassif that it was not her intention to treat the best interests of Joshua as a primary consideration in making her decision. It is also uncontentious that she did not treat the best interests of Joshua as a primary consideration in making her decision. 3 The parties agree that in the circumstances of this case the Minister was only obliged to treat the best interests of Joshua as a primary consideration if Mr Nassif had a "parental or other close relationship" with Joshua. The phrase "parental or other close relationship" comes from Ministerial General Direction No 21. The parties also agree that the information before the Minister was such as to require her to turn her mind to whether Mr Nassif had such a relationship with Joshua. 4 The only issue to be determined is thus whether it is appropriate for the Court to conclude, on the balance of probabilities, that the Minister did not give consideration to whether the relationship between the Mr Nassif and Joshua was a "parental or other close relationship". For the reasons set out below I am of the view that it is appropriate for the Court to so conclude. 5 The Minister signed a statement of reasons in respect of her decision. The statement records that, after concluding that she was empowered by s 501(2) of the Act to cancel Mr Nassif's visa, the Minister turned to consider whether to exercise her discretion to do so.


case_text: The appellant formally submitted that the approach of the Federal Magistrate was erroneous in that the Minister carried the burden of proving that s 424A(1) did not apply to the information upon which the Tribunal based its finding that the appellant had had assistance from his adviser since May 2005 (see s 424A(3)). However, I consider it appropriate to proceed on the same basis as the Federal Magistrate, namely that the appellant carried the burden of establishing that s 424A applied to the information. This was the approach adopted by Moore J, with whom in this regard Weinberg and Allsop JJ agreed, in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [82] - [83] (see Weinberg J at [173] and Allsop J at [264]). 10 The Tribunal's reasons for decision record that it had before it the file concerning the appellant maintained by the Minister's Department. That file includes the appellant's protection visa application. The file reveals that the appellant's protection visa application was received by the Department under cover of a letter dated 11 May 2005 signed by Mr Haque. In this letter Mr Haque asserted that he acted for the appellant with respect to his visa application. The statement that formed part of the appellant's visa application discloses on its face that it was declared by the appellant before Mr Haque. Other correspondence on the Departmental file suggests that Mr Haque was still the appellant's adviser at the time of the delegate's decision. I am therefore prepared to proceed on the basis that it is more likely than not that the Tribunal had regard to information in the Departmental file before making its finding regarding the appellant's assistance from his adviser. 11 However, a finding that the Tribunal had regard to information in the Departmental file does not necessarily lead to the conclusion that s 424A applied to that information. If the Tribunal obtained the same information from the appellant during his Tribunal hearing, for example, s 424A(3)(b) operates to prevent s 424A applying to the information ( SZEEU v Minister for Immigration 150 FCR per Moore J at [91]). To succeed in his contention that the Tribunal failed to comply with the requirements of s 424A in respect to the information upon which its finding was based, it was necessary for the appellant to satisfy the Federal Magistrate that the Tribunal did not base its finding on information that he gave for the purposes of his application to the Tribunal. 12 It was open to the appellant to adduce evidence before the Federal Magistrates Court of what information he did, and did not, give to the Tribunal for the purposes of his application, including during his hearing. However, he did not do so. The circumstances surrounding his failure to adduce evidence of the information he gave to the Tribunal during his hearing were as follows. The Federal Magistrate had ordered that evidence of what was said at the appellant's Tribunal hearing was to be presented in the form of a transcript verified by affidavit and that a tape recording would not be received in evidence without the leave of the court obtained prior to the hearing. No transcript was tendered in the Federal Magistrates Court. When his Honour drew attention to the evidentiary problems which the appellant faced in the absence of the transcript, the appellant's counsel applied for the hearing to be adjourned to enable a transcript to be obtained. That application was refused. The appellant does not challenge the appropriateness in the circumstances of the refusal of the adjournment application. 13 It was also open to the appellant to make an application to this Court to receive on his appeal evidence additional to that adduced in the Federal Magistrates Court (see O 52 r 36 of the Federal Court Rules ). No such application was made. 14 The case sought to be made by the appellant before the Federal Magistrates Court and on appeal was that, even in the absence of evidence of what information the appellant provided to the Tribunal during his hearing, the Federal Magistrate ought to have been satisfied, on the balance of probabilities, that the information on which the Tribunal based the finding identified in [6] above was not information provided by the appellant during that hearing. In my view this case necessarily fails. 15 The written reasons for decision of the Tribunal reveal that the appellant attended his Tribunal hearing accompanied by Mr Haque who was acting as his adviser. The reasons also reveal that the circumstances in which the appellant completed his protection visa application were the subject of discussion during the hearing. In particular, the reasons record that the appellant advised the Tribunal that "[h]e had explained his refugee claims to his adviser, who had then recorded them in writing in English." In the context, in my view, the reference to "his adviser" is to be understood as a reference to Mr Haque. The reasons for decision of the Tribunal thus tend to establish that the appellant gave to the Tribunal the information that Mr Haque was his adviser both as at the date of the Tribunal hearing and in May 2005 (ie the date of his visa application). 16 The finding of the Tribunal that Mr Haque had been available to give the appellant advice throughout the period between May 2005 and the date of the Tribunal hearing may reflect an inference drawn solely from the information identified in the previous paragraph. If it does, s 424A plainly did not apply to that information because it was information that the appellant gave for the purpose of his application to the Tribunal. 17 Even if it be assumed that the Tribunal placed weight on information in addition to that identified in [15] above in reaching its finding, that additional information may have been given to the Tribunal by the appellant for the purpose of his application or it may have come to the Tribunal from another source. Nothing before the Federal Magistrate suggested that the second of these options was inherently more likely than the first. Indeed, the following factors suggest that his Honour was right to conclude that the first option was the more likely. 18 As mentioned above, the appellant did not give evidence before the Federal Magistrates Court to the effect that he gave no relevant information additional to that identified in [15] above to the Tribunal. Nor did he seek to adduce evidence on appeal to that effect. He did not tender in the Federal Magistrates Court a verified transcript of the Tribunal hearing. Nor did he seek to adduce evidence on appeal to establish what he said at the Tribunal hearing. The appellant did not adduce evidence in either Court to explain the above forensic decisions. It is possible that cost was an impediment in the way of the appellant's obtaining a transcript of the Tribunal hearing. However, it seems unlikely that the same could be said in respect of the tape recording of the hearing or the adducing of evidence from the appellant himself. It is appropriate in the circumstances to conclude that evidence of what the appellant said at his Tribunal hearing would not have assisted his case. 19 The appellant has failed to demonstrate that the Federal Magistrate ought to have concluded that s 424A had application to the information before the Tribunal on which it made the finding that Mr Haque had been available to give the appellant advice throughout the period between May 2005 and the date of the Tribunal hearing. He has therefore failed to show that the Federal Magistrate ought to have allowed his application for judicial review on the basis that the Tribunal failed to comply with the requirements of s 424A.


case_text: In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 the High Court held that s 501(2) is a valid exercise of the Federal Parliament's power to make laws with respect to aliens. Similar arguments to those put in this case were put to the Full Court of this Court in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292. The Court considered the authorities relevant to the relationship between laws providing for the deportation of aliens and the cancellation of their visas and Chapter 111 of the Constitution and then summarised the effect of those authorities in the following propositions (at [66]): '1. Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law. 2. Under Chapter III of the Constitution , the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution . 3. Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual. 4. Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty. 5. Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment. 6. Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.'


case_text: Whether a person has been absorbed into the Australian community and thereby ceased to be an immigrant requires a consideration of a number of the factual matters of which French J provided a summary in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 at 510 [46] . 19 It seems to me that it is likely the applicant fell within the terms of s 34 of the Act and I am prepared to assume that he held an absorbed person visa on 1 September 1994. 20 The applicant submits that he could only hold one visa at a time and therefore he did not also hold a transitional permanent visa on 1 September 1994. He referred to s 82(2) of the Act which is in the following terms: '(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.'


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 81 ALJR 1

case_text: At the time this appeal was argued before me, the High Court had not handed down its decision in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom . That decision has now been handed down: [2006] HCA 50 ; (2006) 81 ALJR 1 (' Nystrom '). The decision is a significant one in that it resolves a number of the issues in this case. 15 In Nystrom , the Minister appealed from a decision of the Full Court of this Court. The Minister had cancelled the respondent's transitional permanent visa and the respondent challenged that decision. He submitted that he held an absorbed person visa instead of, or in addition to, the transitional permanent visa. He submitted that the Minister's decision was invalid for jurisdictional error because the Minister had made a decision in relation to a visa he did not hold. He also argued that if he held a transitional permanent visa the Minister in cancelling that visa had erred because he had not taken into account the fact that by reason of s 501F(3) of the Act his decision would also lead to the cancellation of his absorbed person visa. The respondent also submitted that the power in s 501(2) was restricted or curtailed by the operation of s 200 and s 201 of the Act. It will be apparent from this brief summary that a number of the arguments in Nystrom were the same as the arguments put in this case. 16 By the time Nystrom had reached the High Court it was common ground that on 1 September 1994 the respondent held an absorbed person visa. As I have said, in the case before me the Tribunal member seems to have assumed that the applicant held an absorbed person visa, although he did not finally decide the point. On appeal to this Court, the Minister argued the matter on the basis that the applicant held an absorbed person visa as at 1 September 1994 without conceding that that was necessarily the case. 17 A non-citizen who falls within the terms of s 34(2) of the Act is taken to have been granted an absorbed person visa on 1 September 1994. Section 34(1) and (2) of the Act are in the following terms: '(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas. (2) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date, had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and (d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994.'


case_text: The applicant's third submission is that s 501(2) authorises an impermissible exercise of judicial power in that it authorises the Minister to punish a visa-holder for the crimes he or she has committed and for which he or she has already been punished. To the extent that it does that it is said by the applicant to be invalid. The applicant refers to observations made by Spender J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402 at [30] - [35] . In the alternative, the applicant submits that if s 501(2) does not authorise an impermissible exercise of the judicial power and is valid, nevertheless, in this case, the power was exercised for the impermissible purpose of punishing the applicant for the criminal offences he had committed. In the context of this submission the applicant referred to the following factual matters: 1. The applicant is a non-citizen of longstanding, which I assume means that he has been in Australia for a considerable period of time. 2. The applicant has two children in Australia. 3. The applicant was the holder of an absorbed person's visa and was entitled to rely upon the nature of the visa, coupled with the protective elements of s 201 of the Act, to assume that he had been absorbed in the Australian community. 4. The applicant has no significant ties with his place of birth and would be liable to live a destitute life. 5. The applicant has been punished by the Australian courts for offences committed in Australia while present here as an absorbed person.


case_title: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28


case_text: The first respondent further submits that any weight to be given by the Tribunal to evidence was a matter for the Tribunal: Abebe v The Comonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at [197] . 36 Finally, the first respondent submits that there was no error in the way in which the Federal Magistrate dealt with the issue of s 425 and that the appellant was properly on notice of the issue in relation to the tenant generally. 37 The first respondent's contention that the grounds of appeal raise matters not raised before the Federal Magistrate must be accepted. The sole issue before the Federal Magistrate was whether there had been compliance with s 425 by the Tribunal putting to the appellant conflicting statements in the Amnesty International Report. The Federal Magistrate ruled against the appellant on that sole ground. The appellant has not made that ruling the subject matter of this appeal. 44 Insofar as it is submitted that the Tribunal was in error in determining the absence of fear on the part of the appellant, that was a matter for the Tribunal and not for this Court. The weight that the Tribunal put upon the evidence for the purpose of determining that issue was also for the Tribunal and not for this Court: Abebe [2004] HCA 32 ; 197 CLR 510.


case_text: The second ground seems to be a complaint going peculiarly to the merits or to the weight which the Tribunal put upon the evidence which gave rise to the Tribunal's ultimate decision, disguised as it were as a complaint of bias. Insofar as it is a complaint about the merits, that is not a matter for this Court: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Insofar as it is a complaint of apprehended bias or bias, there is simply no evidence to support a claim of prejudgment.


case_text: A party is not entitled to raise new grounds which were deliberately or by inadvertence not put to the Court from which the appeal is brought: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71. 39 If the appellant were entitled to raise these new grounds, it would mean that this Court would have to sit, as it were, as the Court at first instance to determine whether these new grounds would give rise to the relief sought in the application before the Federal Magistrate. Parliament has given the responsibility for hearing these applications exclusively to the Federal Magistrates Court. The parties, whether they are represented or unrepresented, ought to articulate all of their complaints in relation to the Tribunal's reasons in the Federal Magistrates Court so that that Court can make the appropriate findings and reach a considered decision on all aspects of the Tribunal's decision.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407


case_text: To allow the appellant to articulate these grounds on appeal would be to allow the appellant to treat this Court as a Court at first instance. Such a course of action is unsatisfactory, not only for this Court but also for the High Court which would hear any application for special leave from this decision. It would put the High Court, as it were, in a position of hearing applications for special leave from a court of first instance: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499.


case_text: However, authority seems to suggest that I need to consider whether the grounds have merit before I determine whether I should give leave for the appellant to raise the matters: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. 42 The Tribunal considered the question of a well-founded fear of persecution conventionally. The Tribunal said: Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. 43 The Tribunal stated the correct test which it applied to the facts. It found that the appellant did not have a genuine fear of persecution. That being the case, the appellant could not satisfy the test of well-founded fear of persecution as determined by the authorities.


case_text: Whether a question of law is raised by an appeal from the Tribunal is itself a question of law. The leading authority is the judgment of Mason J, with whom Gibbs, Stephen and Aickin JJ agreed, in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7. His Honour there stated the rule in these terms: the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. However, Mason J went on to qualify that statement by pointing out that when a statute uses words according to their "common understanding", and the question is whether the facts as found fall within such words, the question is one of fact. The example his Honour cited was the decision of the House of Lords in Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 where the question raised by the applicable statute was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that the behaviour was insulting the question was one of fact.


case_text: The principle was applied in the context of s 44(1) by Branson J, with whom Spender and Nicholson JJ agreed, in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522. The issue was whether an employee had suffered an "injury" within the meaning of s 4(1) of the Safety, Rehabilitation and Compensation Act. Her Honour at [26], having pointed out that it was not suggested that the word "injury" was used in other than its ordinary or common meaning, concluded that the question was one of fact. In the present case it was accepted that the term "mental injury" was used in the same way. 64 Branson J went on to point out that a finding of the Tribunal that a particular condition of an employee's body was not an "injury" may be unlawful, and therefore subject to judicial review, because of a failure by the Tribunal to comply with the law, as for example by failing to take into account a relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1985) 162 CLR 24 at 39; Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5. 65 But such a situation does not mean, or at any rate necessarily mean, that an appeal under the Administrative Appeals Tribunal Act from such a decision of the Tribunal is " on a question of law" so as to satisfy the requirement of s 44(1). In such a case there is no question of law. The law is clear. The Tribunal must take relevant considerations into account. 66 Returning to the present case, the alleged questions in Mr Farnaby's amended notice of appeal do not show that the appeal is on questions of law. There is no doubt that, as a matter of law, the relevant time for assessing whether Mr Farnaby suffered "mental injury" was as at the lodging of his claim and that it is sufficient that his employment in the Navy was a cause of his injury (if any) even if it was not the only cause. The Tribunal's decision did not suggest the law was otherwise. 67 Strictly speaking these jurisdictional points should have been resolved at the outset of these reasons, with the result that the appeal would be dismissed without further consideration of its merits. However, given the Tribunal's factual findings, there can be no doubt that Mr Farnaby as a vulnerable young lad was badly treated by the Navy. It seemed only fair to him to affirm that, in the light of the arguments before me, the Tribunal's further finding that he did not suffer mental injury as a result, was a proper one made after a careful review of the evidence. 68 The appeal will be dismissed with costs, including reserved costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 17 December 2008 Counsel for the Applicant: K Read Solicitor for the Applicant: FitzGerald and Browne Lawyers Counsel for the Respondent: S P Estcourt QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 December 2008 Date of Judgment: 17 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1911.html


case_text: On 24 January 2002 Mr Farnaby made a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth). He alleged that while at HMAS Leeuwin he suffered physical and sexual abuse which resulted in post traumatic stress disorder (PTSD). His claim was disallowed. That decision was affirmed by the Administrative Appeals Tribunal, constituted by the Hon R J Groom (Deputy President) and Dr J Campbell (Member): Farnaby and the Military Rehabilitation and Compensation Commission [2008] AATA 603. Mr Farnaby now appeals to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 3 The transitional provisions of the 1988 Act required Mr Farnaby to show that, within the meaning of the Commonwealth Employees Compensation Act 1930 (Cth), he had suffered a "personal injury by accident arising out of or in the course of his employment": s 9(1). "Injury" means "any physical or mental injury" (s 4(1)) or "disease ... due to the nature of (his) employment" (s 10(1)). 4 For the purposes of this appeal we are only concerned with Mr Farnaby's claim based on "mental injury". PTSD is a mental injury.