case_text: In Martin v Tasmania Development and Resources (1999) 163 ALR 79, Mr Martin claimed that a letter stating that his termination was necessary on the basis of "operational requirements" was misleading and deceptive and contravened s 52. At the trial of the action I found that there were in fact "operational requirements" within the meaning of that term in the contract of employment: 163 ALR at [55]-[67]. Mr Martin succeeded on other grounds, not relevant for present purposes. However, I held that if the representations as to operational requirements were misleading and deceptive, they would not have been made in trade or commerce. In expressing disagreement with Wilcox J, I said (at [77]): "The majority in (Concrete Constructions) clearly rejected the wider construction of 'in trade or commerce', which would extend to virtually any activity of a corporation. It is true that a building company could not earn income unless it had workers who received instructions from foremen. But that was not enough to bring the alleged misrepresentation within the concept of 'trade or commerce'. Similarly, TDR could not carry out its activities of promoting Tasmanian trade and development (which activities themselves I assume for present purposes to be in trade or commerce) unless it engaged staff. Nevertheless such engagements and the necessary associated incidental negotiations, however necessary, are not in themselves of a trading or commercial nature. They are internal affairs of TDR." In Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 212-213, another final hearing, a case concerning alleged misrepresentations by an employer to employees about superannuation entitlements, I took the same view.


case_outcome: cited

case_text: In any event, unconscionable in s 51AA does not mean unfair or reprehensible in a colloquial sense. Rather, as explained in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at [6] - [8] , [42]-[46], it refers to the equitable doctrine, the meaning of which has been expounded in High Court cases such as Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457. In the present case there is no complaint that the respondents exploited any special disadvantage of Ms Lipscombe in respect of the formation of the Contract and her engagement as Director. If the respondents' termination of the Contract amounted to a breach, the ordinary contractual remedies would be available. If the publication of the termination letter amounted to defamation, she will have, as she alleges, a good cause of action.


case_title: Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457


case_title: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457


case_outcome: applied

case_text: But even if the federal claims are struck out, this Court will not be deprived of jurisdiction over the non-federal claims unless it can be shown that the former were "colourable", that is they were made for the improper purpose of fabricating jurisdiction: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. This is a serious allegation. I did not understand it to have been put by the respondents. In any case, there is no basis for it. In particular, the s 52 claims would have appeared to have had some support from first instance judgements, at least in the light of the strikeout standard which applied when the proceeding was commenced. 41 Paragraphs 23-34 of the statement of claim will be struck out. The respondents will have leave to file and serve an amended defence on or before 12 May 2006. The directions hearing is adjourned to 6 June 2006 at 9.30 am. The applicant is to pay the respondents' costs of the strikeout application. I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: Counsel for the Applicant: W A Ayliffe Solicitor for the Applicant: Jo Matthews Counsel for the Respondents: R E Hudson Solicitors for the Respondents: Butler McIntyre & Butler Date of Hearing: 17 March 2006 Date of Judgment: 28 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/458.html


case_outcome: followed

case_title: Antoun v R [2006] HCA 2 , 224 ALR 51

case_text: The reasons for decision as provided by the Federal Magistrates Court set forth, in summary form, the evidence as was before the Tribunal and then proceeded to deal with both of the " Grounds " being advanced for consideration. The Federal Magistrate did not perceive there to be any jurisdictional error. He dismissed the contention that there had been a denial of procedural fairness by concluding: ... As for the second ground this appears to be a figment of the imagination of the person who wrote the application for this applicant. She actually attended two hearings. Exasperation may be felt when, as frequently happens in migration cases, arguments are advanced for resolution which appear to have little (if any) correlation with the facts in issue. Albeit in the context of addressing comments made by a trial judge during the course of a hearing, the following comments of Gleeson CJ in Antoun v R [2006] HCA 2 , 224 ALR 51 reflect both the reality that may be experienced in entertaining what appear to be unmeritorious arguments and the need to always ensure the appearance of impartiality: [22] Judges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice. Judges may anticipate events at trial, and foresee lines of argument that may be developed. Here, the appellants made it clear from the outset that they hoped to be able to secure acquittal without giving evidence themselves. Perhaps the judge felt indignant about the conduct disclosed by the evidence, or about the tactics adopted by the appellants. Indignation is a natural reaction to some facts that are disclosed, or some events that occur, at a criminal trial or, for that matter, on an appeal. It should never be permitted to compromise the appearance of impartiality that is required of judges. In the context of the present appeal it may likewise be observed that moderation in the language with which reasons for decision are expressed may be more productive of adverse decisions being accepted as a balanced and impartial resolution of a dispute, especially disputes involving an unrepresented litigant. 10 There is nothing, however, which indicates that the Federal Magistrate in the present proceeding did not consider and " fairly " and " reasonably " resolve the arguments being advanced. Not only did the Federal Magistrate resolve the arguments being advanced by the now Appellant, he also considered a further argument potentially available to her based upon s 91R(3) of the Migration Act 1958 (Cth). This argument had properly been raised by those appearing for the Respondent Minister.


case_title: Klinger v Nicholl [2005] FCAFC 153

case_text: Other than the language used by the Federal Magistrate in his reasons for decision, there is thus no basis upon which any argument as to a lack of " fairness " could be advanced in the present appeal. That language, although it may have been more prudent for the observations to have been differently expressed, falls far short of establishing any reasonably held belief that the Federal Magistrate was not determining the case before him " fairly " and " reasonably ". There is no basis upon which it could be contended that the Federal Magistrate was not acting " impartially and without prejudice ". Each case must obviously be decided upon its own facts. But it may be noted that in Penhall-Jones v New South Wales [2007] FCA 925 a Federal Magistrate was not disqualified by reason of characterising an allegation that an offer had been made as a " bribe " as " ridiculous ". That and other " strong " language, Buchanan J concluded, did not demonstrate on the part of the Federal Magistrate " a lack of preparedness to deal with [the case] in a balanced way ": at [95]. The manner in which a judgment is expressed may evidence a reasonable apprehension of bias: Vakuata v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573. But the use of intemperate language, of itself, does not necessarily result in a decision being set aside: Klinger v Nicholl [2005] FCAFC 153 ; Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 at [32] , [1999] FCA 86 ; 89 FCR 435 at 443.


case_title: Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 , 89 FCR 435


case_title: Penhall-Jones v New South Wales [2007] FCA 925


case_text: There are at least two reasons why the first Ground of Appeal raised in this Court should be rejected. First, it was not an argument raised before the Federal Magistrates Court and no reason has been advanced as to why leave should now be granted to entertain the argument. Second, it is well accepted that a " reasonable apprehension " of bias must be " firmly established ": Re JRL, Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342. Mason J there observed (at 352): It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [1976] HCA 39 ; [(1976) 136 CLR 248] and Livesey [1983] HCA 17 ; [(1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; [(1969) 122 CLR 546 at 553 4]; Watson [(1976) 136 CLR at 262]; Re Lusink; Ex parte Shaw [(1980) 32 ALR 47 at 50 1]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. There is no basis upon which any " reasonable apprehension " of bias on the part of the Tribunal could be established. A review of the reasons for decision of the Tribunal does not establish anything other than the Tribunal reviewing the facts before it and the reasons for its decision. Where it is expedient in the interests of justice, a new argument may be allowed to be advanced on appeal which was not advanced at first instance: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46] . In the present proceeding, it is not expedient in the interests of the administration of justice to allow a new argument to be raised on appeal which has no prospects of success.


case_text: Although the Affidavit as filed in this Court refers indiscriminately to complaints made as against the Department, the Tribunal and the Federal Magistrates Court, it should be noted that the mere rejection of a claim by either the Tribunal or the Federal Magistrates Court self-evidently does not establish any reasonable apprehension of bias: cf SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. When referring to the reasons for decision of a Refugee Review Tribunal, His Honour there further relevantly observed that " it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision ". These observations have since been endorsed by Tamberlin, Mansfield and Jacobson JJ in SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16] . See also: SZHOP v Minister for Immigration & Multicultural Affairs [2006] FCA 1640 at [23] ; SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301 at [21] .


case_title: SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152

case_text: The lack of " fairness " on the part of the Federal Magistrates Court was explained by the now Appellant (through her interpreter) as being the fact that neither the Tribunal nor the Federal Magistrates Court believed that she was a genuine Falun Gong practitioner. The task of making findings of fact, including findings as to the credibility of the now Appellant, rested with the Tribunal. It is no part of the function of the Federal Magistrates Court or of this Court to review the factual findings as made. As was observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] , [2006] HCA 63 ; 228 CLR 152 at 160 " What is required by procedural fairness is a fair hearing, not a fair outcome ". The now Appellant was given a " fair hearing " before the Federal Magistrates Court. 14 No appellable error can be perceived in the reasons for decision of the Federal Magistrates Court. Those reasons do not expose anything other than a fair and impartial determination of the case being advanced. 15 The appeal is dismissed with costs.


case_title: SZHOP v Minister for Immigration & Multicultural Affairs [2006] FCA 1640


case_title: SZLVN v Minister for Immigration & Citizenship [2008] FCA 1301


case_text: On 15 April 2008 the Tribunal published its reasons for decision to affirm the decision not to grant the visa. The Tribunal concluded ( inter alia ) that the now Appellant was not " a genuine and committed Falun Gong practitioner ". The Tribunal further concluded that " the applicant will not practise Falun Gong if she returns to China as she is not a committed or genuine practitioner; she has not practised in Australia since she has been here which is now nearly nine months since her arrival date ". An application was then filed with the Federal Magistrates Court for review by that Court. The application was dismissed and reasons for decision published on 25 September 2008: SZMJA v Minister for Immigration [2008] FMCA 1387. 4 The Appellant now appeals to this Court. She appeared before the Court yesterday unrepresented and with an interpreter. The Grounds of Appeal (without alteration) are expressed as follows: 1. Refugee Review Tribunal has bias against me and didn't make fair decision for application. 2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge didn't consider my application fairly. The Judge dismissed my application. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. An Affidavit filed in this Court simply states: My application for a protection visa was refused by DIAC and RRT and I've found jurisdictional error with RRT. I lodged my application to be reviewed at Federal Magistrates Court. The Judge didn't consider all information provided at my hearing. 5 The appeal is to be dismissed.


case_outcome: considered


case_title: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158


case_outcome: referred to

case_text: This matter has an exceptionally long history which some number of Judges both of this court and of the Supreme Court of South Australia have been obliged to narrate in detail. In my judgment in Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCA 60 I set out a chronology at some length. I will not repeat it here other than to say that Mr Cirillo sought an inquiry as to damages in respect of an undertaking given when an injunction was awarded against him in 1985 restraining him from dealing with a particular piece of property described as "the Poclain". That injunction lapsed in February 1993 and the inquiry was sought in respect of that period. There were considerable interlocutory issues raised in that proceeding which, as I will later indicate, bear on the present matter. Suffice it to say that for present purposes in July 2000 a Master of the Supreme Court ordered the preliminary hearing of five issues from the apparently substantial number of issues that had arisen between the parties. Two of those issues were not prosecuted, the remaining three all were decided adversely to Mr Cirillo. A judge of the Supreme Court held, first, that he did not have standing to pursue his claim for relief in light of the events which had occurred; secondly, that he was not at any relevant time the legal or beneficial owner of the property in question nor did he have any right to possession of it; and, thirdly, he was estopped from asserting that he was a beneficial owner at any relevant time. His enquiry as to damages was dismissed. Mr Cirillo appealed unsuccessfully to the Full Court and a special leave application to the High Court was refused. The consent order founding the bankruptcy notice was made on 28 July 2005. 4 The applicant filed the present application on 11 July 2006. Counsel for the applicant has not read much of the affidavit filed in support of that application. It would appear that what was foreshadowed in it was an action in tort for abuse of process against four respondents plus their then solicitors, Finlaysons. The nature of that abuse has been said to be similar to that contained in a subsequent Federal Court proceeding to which I will refer to below. 5 The set aside application was heard and reserved by a Registrar of the Federal Magistrates Court after a hearing over several days. Before the Registrar came to give judgment a further affidavit was filed by Mr Cirillo. Counsel for Mr Cirillo subsequently sought to have the hearing before the Registrar re-opened for the purpose of admitting that affidavit into evidence. By that stage Mr Cirillo had instituted proceedings in this court against the same five respondents. He purported to claim damages for breaches of duties of care he alleged were owed him by all respondents. While he characterised the conduct of the respondents as an abuse of process he did not plead that tort as such. The alleged wrongdoing of which complaint was made was concealment of an alleged agreement in 1997 by CAL in which it was supposed to have transferred secured debts owed to it by CWC to other corporate entities. The effect of this was said to be that CAL had in consequence not disclosed that it had no right to defend the inquiry as to damages proceedings at least on the basis that it had a set-off against Mr Cirillo's claims by virtue of its secured debt which was in turn supported by a personal guarantee by Mr Cirillo. Allied to this was a claim under the Trade Practices Act 1974 (Cth) against all of the respondents for damages for a contravention of s 52.


case_title: Guss v Johnstone (2000) 171 ALR 598

case_text: Equally, it does not appear that any order extending time was made under s 41(6A)(b). Mr Cirillo's application seems to be founded solely upon s 41(7) of the Bankruptcy Act , his claim being that his tort action against the five respondents would satisfy the requirements of a counter-claim, set-off or cross demand for the purposes of that subsection. As I indicated in my judgment in the strike out proceedings, unless and until the costs order is set aside, it is simply not open to Mr Cirillo to make the claim he seeks to make founded on the tort of abuse of process claiming damages in respect of costs incurred in the inquiry as to damages proceeding. For this reason he cannot now point to an existing cross claim had by him that could be set-off against the costs order: Guss v Johnstone (2000) 171 ALR 598 at 607. 18 The present application properly characterised is a belated attempt to have time extended to institute proceedings to set aside the costs order rather than to set up a counter-claim, set-off or cross demand. This becomes immediately apparent once it is appreciated that if the costs order is set aside the judgment debt founding the bankruptcy notice would disappear. On this straightforward ground I would dismiss the application. 19 I would not, though, wish it to be thought that, even if this application could competently have been brought under s 41(7) , I would have the relevant level of satisfaction required to set aside the bankruptcy notice.


case_title: Patone v Asteron Ltd (formerly Royal and Sun Alliance Financial Services Limited) (ACN 001 698 228) [2004] FCA 232

case_text: I equally should indicate that I have no material before me which could lead to the requisite satisfaction that the counter-claim etc on which Mr Cirillo intends to rely would, if quantified, be in a sum equal to or in excess of the amount of the costs order. There are simply bald assertions of sums of costs incurred by Mr Cirillo both in interlocutory proceedings and in the preliminary hearing. These are not the subject of any evidence that could satisfy me that he has any reasonable probability of recovery of such sums in his foreshadowed proceedings: see Patone v Asteron Ltd (formerly Royal and Sun Alliance Financial Services Ltd) (ACN 001 698 228) [2004] FCA 232 at [74] - [75] . 25 As to the alleged loss he incurred in unsuccessfully prosecuting the preliminary hearing it is difficult to see how this could be said to represent a recoverable loss in any event. 26 I have concluded that the present application is an incompetent one. Mr Cirillo cannot engage the power to extend time conferred by s 41(6A) of the Bankruptcy Act insofar as he wishes so to do for the purposes of instituting proceedings to set aside the 2005 costs order of the Supreme Court of South Australia. Nor are the circumstances ones in which he can have the bankruptcy notice itself set aside under s 41(7) of the Bankruptcy Act . Accordingly, I will order that the application be dismissed and I order the applicant to pay the respondents' costs of the application. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J. Associate: Dated: 16 February 2007 Counsel for the Applicant: Mr J Ribbands Solicitor for the Applicant: McNamara Business & Property Law Counsel for the Respondent: Mr W M Ericson Solicitor for the Respondent: Finlaysons Date of Hearing: 13 February 2007 Date of Judgment: 16 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/139.html


case_title: Chandramouli v Wallader [2001] FCA 808

case_text: If a bankruptcy notice is a nullity and of no effect, it is not a notice under the Act: see Circle Credit Co-Op Ltd v Lilikakis [2000] FCA 667 ; (2000) 99 FCR 592 at [10] per Heerey J; Chandramouli v Wallader [2001] FCA 808 at [4] . It must be a notice under the Act to be subject to the court's power of amendment in s 33(1)(b).


case_title: Circle Credit Co-Op Ltd v Lilikakis [2000] FCA 667 ; (2000) 99 FCR 592


case_text: The appellant's Notice of Appeal filed 29 February 2008 contained eight grounds, the first five of which encapsulate the crux of the appellant's appeal to this Court. They provide: His Honour erred in law in A1 failing to hold that the Bankruptcy Notice served on the appellant by the respondent was invalid A2 failing to hold that, as an invalid Bankruptcy Notice, the Notice was not able to be amended because as a matter of construction ss 40 and 41, (in providing for a bankruptcy notice founding an Act of Bankruptcy cognisable under the Act) and s 33 (power to amend) must as a matter of construction refer only to a valid notice; and the Court below (FMC) had no jurisdiction to amend or deal in any way with an invalid notice except to pronounce it invalid. A3 failing to hold that s 41(5) of the Act, in stating that a bankruptcy notice "is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity on the ground of the misstatement" carries the meaning that if notice is duly given of dispute on that ground, the notice is invalid, and invalid ab initio. A4 failing to hold that the "amendment" is not within the Court's jurisdiction because it is in reality an assumption of jurisdiction that the legislation does not allow ie the Court cannot hold something made essential by the Act, leading to invalidity of the Bankruptcy Notice) to be inessential. ( Kleinwort Benson. ) A5 purporting to make an amendment where to do so is not merely to amend but to give validity to what is invalid. 18 Ground A6 went to his Honour's decision to hear the Interim Application before the Amended Application to set aside; it does not arise if the appellant succeeds on her primary ground. Grounds A7 and A8 were not pressed on the hearing of the appeal and can be put to one side. 19 Section 41(5) of the Act provides: (5) A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement. The power to amend a notice under the Act is relevantly contained in s 33 of the Act: (1) The Court may: ... (b) at any time allow the amendment of any written process, proceeding or notice under this Act; or ... 20 A bankruptcy notice is clearly a notice under the Act; however, contrary to the submission of the respondent, it is not a proceeding under the Act. It is the issue of a bankruptcy notice which is a proceeding under the Act: Pillai v Comptroller of Income Tax [1970] AC 1124 at 1131; quoted with approval in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 at 77 per Mason CJ, Wilson, Brennan and Gaudron JJ. 29 The respondent submitted that even if a bankruptcy notice is invalid by reason of an overstatement of the amount due to the creditor and the timely giving by the debtor to the creditor of a notice complying with the requirements of s 41(5), the most that this does is make failure to comply with it a non-event or, to use the words of Deane J in Kleinwort Benson 165 CLR at 81 '... failure to comply with it does not constitute an act of bankruptcy'. In the respondent's submission, s 33(1)(b) of the Act nevertheless empowers the court to 'cure' the invalidity by amending the notice so that the amount referred to therein corresponds with the amount due to the creditor. 30 This latter submission was predicated on three underlying arguments: (1) There is no express or implied restriction in the power conferred by s 33(1)(b) of the Act, such that it does not apply where a bankruptcy notice is invalid; (2) a defective bankruptcy notice is still a bankruptcy notice and therefore s 33(1)(b) applies to it; and (3) a bankruptcy notice that is liable to be invalidated is not invalid until a court declares it to be so and therefore the Bankruptcy Notice is not invalid. 31 I have already dealt with the third argument at [27] above and I reject it. 33 In Kleinwort Benson 165 CLR at 79, 80, Mason CJ, Wilson, Brennan and Gaudron JJ said: The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v Federal Commissioner of Taxation [1955] HCA 75 ; [(1955) 93 CLR 631 at 644]; Pillai [[1970] AC 1124 at 1135]. In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of 1908 [[1908] 2 KB 474 at 481].


case_text: In Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 ; (2004) 138 FCR 324 , Weinberg J concluded at [36] and [37]: [36] The purpose of a bankruptcy notice is to convey to the debtor the amount claimed by the creditor, and to give the debtor the opportunity to pay or secure that amount. It is important that a bankruptcy notice be prepared with great care. The courts require strict compliance with the Act and Regulations. The reason for this is that a bankruptcy notice sets in train the entire process leading to bankruptcy, a process that has been described as 'quasi-penal'. [37] Formal errors in a bankruptcy notice do not result in its invalidity unless they have caused substantial injustice. However, substantive errors will generally lead to the notice being regarded as invalid and of no effect. If a bankruptcy notice is invalid, any bankruptcy proceedings based upon that notice will be dismissed.


case_text: A bankruptcy notice is clearly a notice under the Act; however, contrary to the submission of the respondent, it is not a proceeding under the Act. It is the issue of a bankruptcy notice which is a proceeding under the Act: Pillai v Comptroller of Income Tax [1970] AC 1124 at 1131; quoted with approval in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 at 77 per Mason CJ, Wilson, Brennan and Gaudron JJ. 33 In Kleinwort Benson 165 CLR at 79, 80, Mason CJ, Wilson, Brennan and Gaudron JJ said: The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v Federal Commissioner of Taxation [1955] HCA 75 ; [(1955) 93 CLR 631 at 644]; Pillai [[1970] AC 1124 at 1135]. In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of 1908 [[1908] 2 KB 474 at 481].


case_text: At [7] of his reasons, his Honour observed that there was no issue that the s 41(5) Notice did not meet the requirements of s 41(5), cf., Seovic Civil Engineering Pty Ltd v Groeneveld [1999] FCA 255 ; (1999) 87 FCR 120 at [36] , and then proceeded to deal with the crux of the appeal to this Court, namely, whether the Act allows amendment of a 'bankruptcy notice' in respect of which a s 41(5) notice has been given. At [7], his Honour said: It cannot be said that the mere giving of notice under s.41(5) invalidates a bankruptcy notice without more, because that would not allow for a situation in which the recipient of the notice could challenge the alleged overstatement. Clearly, a recipient can do this. This means that a declaration of invalidity is something to be done by the court. Why, then, is it not possible for the giver of a notice [a bankruptcy notice] to request the court to allow an amendment thereof before the court has made the declaration? Provided there is no other detriment to the applicant debtor by, for example, giving him a further period of 21 days to comply with the notice, I cannot see that anything would stand in the way of granting leave. In this particular paragraph, his Honour made no reference to s 33(1)(b) of the Act (although he had earlier at [6] of his reasons) but proceeded on the basis that a s 41(5) notice did not work any invalidity on a bankruptcy notice until a court declared it to be so, and prior to that the bankruptcy notice could be amended to cure the over-claim the subject of a s 41(5) notice. I shall return to his Honour's reasoning process below. 21 The legislative history of s 41(5) of the Act is set out in the judgment of the Full Court in Seovic 87 FCR at [41] [48] and I can do no better than repeat what the Full Court there said: [41] So far we have addressed the construction issue independently of the legislative history of s 41(5) of the Bankruptcy Act . That history is, at the least, consistent with the views we have expressed and, on balance, supports the conclusion we have expressed. [42] The antecedents of s 41(5) of the Bankruptcy Act are to be found in s 16(2) of the Bankruptcy and Deeds of Arrangement Act 1913 (UK) (the 1913 Act). This subsection provided that a bankruptcy notice issued in respect of a judgment debt under s 4(1)(g) of the Bankruptcy Act 1883 (UK) (the predecessor of s 40(1)(g) of the Bankruptcy Act) was not to be invalidated in certain circumstances. Section 16(2) was in the following terms: "(2) Notwithstanding anything in the said paragraph (g): ... (ii) a bankruptcy notice shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due, unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of such misstatement, but, if the debtor does not give such notice, he shall be deemed to have complied with the bankruptcy notice if within the time allowed he takes such steps as would have constituted a compliance with the notice had the actual amount due been correctly specified therein." [43] It has been accepted that s 16(2) of the 1913 Act and its Australian counterparts were enacted to overcome the decision by the Court of Appeal in Re a Debtor [1908] 2 KB 692; Re Prossimo; Ex parte De Marco (1952) 16 ABC 86 (Clyne J) at 88; Olivieri v Stafford at 415, per Sweeney ACJ, dissenting (but whose dissent does not affect this question). In Re a Debtor, the bankruptcy notice, which claimed payment of [sterling]984 7s 1d, overstated the interest component by [sterling]1 5s 4d. Cozens-Hardy MR rejected (at 687) the proposition that the overstatement was a mere "formal defect" that fell within s 143(1) of the Bankruptcy Act 1883 (UK) (the forerunner of s 306(1) of the Bankruptcy Act). In his view, to claim payment of a sum that was never due was a substantial defect, regardless of the precise amount of the mistake. Farwell LJ expressed a similar opinion, observing that the statute had to be "strictly followed". He said this (at 689-690): "I cannot think it is a mere formal defect to include in a bankruptcy notice not only the amount payable under the judgment, but also a sum which is not due and owing at all, and which the debtor has no means of seeing on the face of the notice is not due and owing." [44] As Sweeney ACJ observed in Olivieri v Stafford at 416, the language employed in s 16(2) of the 1913 Act was not limited to the situation which arose in that case (and in the present case), where the bankruptcy notice required the debtor to pay a judgment debt which was due and a further statement of interest, a portion of which was not due. The expression used "the sum specified in the notice as the amount due exceeds the amount actually due" -- was apt to cover any factual situation which produced an overstatement of the amount due. [45] Section 16(2) of the 1913 Act was reproduced as proviso (ii) to s 2(1) of the Bankruptcy Act 1914 (UK). It was, in turn, adopted as proviso (ii) to s 53 of the 1924 Act referred to earlier. Section 53 of the 1924 Act stated that a bankruptcy notice was to be in the prescribed form and was to require the debtor to pay the judgment debt or the sum ordered to be paid in accordance with the terms of the judgment or order. In Re Prossimo, Clyne J described (at 89) proviso (ii) as in part creating an exception to the general rule that the bankruptcy notice should require the debtor to pay the judgment debt according to the terms of the judgment. The reference to the "amount actually due" in proviso (ii) was intended to qualify the general rule and to require the bankruptcy notice to state the actual amount due. The second part of the proviso was intended to prevent, under certain conditions, a bankruptcy notice being invalid by reason of an overstatement of the amount actually due. But where the bankruptcy notice overstated the amount actually due and the debtor gave a notice in accordance with the proviso, the bankruptcy notice was invalid. In other words, the law as stated in Re a Debtor did not apply unless the debtor gave the creditor a notice complying with proviso (ii) to s 53 of the 1924 Act. [46] Section 41(5) of the Bankruptcy Act follows the form recommended by the Report of the Committee Appointed by the Attorney-General of the Commonwealth to Review the Bankruptcy Law of the Commonwealth (1962), chaired by Clyne J and including among its members the Commonwealth Parliamentary Draftsman (Mr J Q Ewens). The Committee made the following observations on cl 41 of the draft Bill: "69. The provisions contained in section 53 dealing with the form, contents and service of a bankruptcy notice are considered by the Committee to be generally satisfactory, although the Committee believes that the precise requirements as to such a notice will appear more clearly from the redraft of that section contained in the Bill." Section 41(5) of the Bankruptcy Act reproduces the substance of the first part of proviso (ii) to s 53 of the 1924 Act; while s 41(6) reproduces the substance of the second part of proviso (ii). [47] Section 41(5) of the Bankruptcy Act incorporates the drafting changes suggested by the Clyne Committee and differs from the first part of proviso (ii) to s 53 in several respects. These are as follows: • Section 41(5) is not expressed as a proviso to any other section. However, s 41(2) of the Bankruptcy Act , as originally enacted, was similar to the first part of s 53 of the 1924 Act to which par (ii) was a proviso. (Section 41(2), in its original form, was repealed in 1996 and replaced with a provision which merely requires the bankruptcy notice to be in accordance with the prescribed form). • The subsection uses the expression "the amount in fact due" to replace "the amount actually due" in proviso (ii). • The expression "the misstatement" is substituted for the phrase "such misstatement", which was used in proviso (ii). [48] None of these changes is in our view significant for present purposes. There is nothing to indicate that the Clyne Committee intended that the substitution of the definite article for the word "such" in the concluding phrase should bring about any change in the scope and application of s 41(5) compared with its predecessor. We of course appreciate that Clyne J had expressed the view in Re Charles Murray that a debtor's notice under proviso (ii) to s 53 of the 1924 Act did not have to set out the amount of the excess. It may be that his Honour intended to say no more than that a debtor's notice may be capable of complying with the proviso even if it does not specify precisely the excess improperly claimed in the bankruptcy notice. If Clyne J meant to go further, in our respectful opinion, the language of the proviso and of s 41(5) does not warrant such a step being taken. The general comments in par 69 of the Clyne Committee Report cannot be read as a specific endorsement of the decision in Re Charles Murray. 22 In Seovic 87 FCR, the Full Court ultimately held that the letter of 25 May 1998 from the debtor's solicitors to the creditor's solicitors did not constitute a notice within the meaning of s 41(5) of the Act. Nevertheless, they considered the effect of a debtor's notice under s 41(5) of the Act and made the following observations: [49] We have observed that s 41(5) of the Bankruptcy Act appears to be drafted on the assumption that a bankruptcy notice is liable to be "invalidated" if the sum specified in the notice exceeds the amount in fact due to the creditor. In Re Walsh [(1982) 47 ALR 751] , Lockhart J challenged this assumption, by holding that under the Bankruptcy Act, an over-statement of the amount due by the debtor does not necessarily vitiate the bankruptcy notice. His Honour considered ... that the bankruptcy notice would be avoided only if the over-statement could reasonably mislead the debtor. He said he would decline to follow Re a Debtor and Re Prossimo if they stood in the way of this conclusion. [50] In Re Greenhill; Ex parte Myer (NSW) Ltd (1984) 5 FCR 84 , Morling J declined to follow Re Walsh and held that an over-statement in a bankruptcy of the amount actually due renders the notice invalid, whether or not the over-statement could reasonably mislead the debtor. Morling J considered that observations by the High Court in Walsh v Deputy Commissioner of Taxation [1984] HCA 33 ; [(1984) 156 CLR 337] ... were inconsistent with Lockhart J's analysis. A similar view was subsequently taken by Pincus J in Re Emerson; Ex parte Wreckair Pty Ltd (1991) 101 ALR 315 at 318-319 (affirmed on other grounds: Emerson v Wreckair Pty Ltd [1992] FCA 16 ; (1992) 33 FCR 581 (FC)). [51] We have acted on the assumption, not challenged by either party, that Re Greenhill and Re Emerson correctly state the law. However, our view would not be changed if Lockhart J's decision in Re Walsh were ultimately found to be correct (as to which we express no view). 23 As indicated at [51] of its reasons in Seovic , the Full Court was prepared to act on the assumption that Re Greenhill and Re Emerson correctly state the law, that is, that an overstatement in a bankruptcy notice of the amount in fact due renders the notice invalid, whether or not the overstatement could reasonably mislead the debtor, if a notice complying with the requirements of s 41(5) has been duly given. I am prepared to proceed on the same assumption. 26 Of course the foregoing assumes that the notice given by the debtor complies with the requirements of s 41(5) , cf., Seovic 87 FCR, and that the debtor's notice cannot be challenged on some other ground such as that the bankruptcy notice does not overstate the amount actually due. It would be open to a creditor, in an appropriate case, to challenge a purported s 41(5) notice on either basis, but there is no foundation for a challenge on either basis in the present case. 27 It follows from the foregoing, that I am unable, with respect, to agree with his Honour's reasoning at [7] of his reasons extracted at [16] above. First, his Honour's premise that the mere giving of notice under s 41(5) cannot invalidate a bankruptcy notice without more could only be correct where there is no overstatement in the bankruptcy notice. They are not the facts here. Second, his reason for coming to that conclusion because that would not allow for a situation in which the recipient of the notice could challenge the alleged overstatement does not provide any support because it would always be open to the creditor, in an appropriate case, to challenge a purported s 41(5) notice on either of the bases referred to in [26] above. Third, the invalidity of a bankruptcy notice that has its source of invalidity in its overstatement of the amount in fact due and the timely giving by the debtor to the creditor of a notice that complies with the requirements of s 41(5) is not dependant upon some declaration by a court. In these circumstances, declaration of invalidity by a court is merely declaratory of the operation of the Act to those facts. 28 I am of the view that it would be open to a court to amend, pursuant to s 33(1)(b) of the Act, a bankruptcy notice that overstated the amount due prior to the debtor giving notice to the creditor pursuant to s 41(5) of the Act. If the overstatement is due to clerical error and is one that could not reasonably mislead the debtor, then it may not even be necessary to rely on s 33(1)(b) at all; s 306(1) of the Act may, in those circumstances, save the proceeding. The more difficult question is whether a court is empowered, in reliance on s 33(1)(b) of the Act, to amend a bankruptcy notice once it has been visited with invalidity in the circumstances of the present case.


case_text: In Seovic 87 FCR, the Full Court ultimately held that the letter of 25 May 1998 from the debtor's solicitors to the creditor's solicitors did not constitute a notice within the meaning of s 41(5) of the Act. Nevertheless, they considered the effect of a debtor's notice under s 41(5) of the Act and made the following observations: [49] We have observed that s 41(5) of the Bankruptcy Act appears to be drafted on the assumption that a bankruptcy notice is liable to be "invalidated" if the sum specified in the notice exceeds the amount in fact due to the creditor. In Re Walsh [(1982) 47 ALR 751] , Lockhart J challenged this assumption, by holding that under the Bankruptcy Act, an over-statement of the amount due by the debtor does not necessarily vitiate the bankruptcy notice. His Honour considered ... that the bankruptcy notice would be avoided only if the over-statement could reasonably mislead the debtor. He said he would decline to follow Re a Debtor and Re Prossimo if they stood in the way of this conclusion. [50] In Re Greenhill; Ex parte Myer (NSW) Ltd (1984) 5 FCR 84 , Morling J declined to follow Re Walsh and held that an over-statement in a bankruptcy of the amount actually due renders the notice invalid, whether or not the over-statement could reasonably mislead the debtor. Morling J considered that observations by the High Court in Walsh v Deputy Commissioner of Taxation [1984] HCA 33 ; [(1984) 156 CLR 337] ... were inconsistent with Lockhart J's analysis. A similar view was subsequently taken by Pincus J in Re Emerson; Ex parte Wreckair Pty Ltd (1991) 101 ALR 315 at 318-319 (affirmed on other grounds: Emerson v Wreckair Pty Ltd [1992] FCA 16 ; (1992) 33 FCR 581 (FC)). [51] We have acted on the assumption, not challenged by either party, that Re Greenhill and Re Emerson correctly state the law. However, our view would not be changed if Lockhart J's decision in Re Walsh were ultimately found to be correct (as to which we express no view). 24 That assumption is supported by the observation, albeit obiter , of Gibbs CJ in Walsh v Deputy Federal Commissioner of Taxation [1984] HCA 33 ; (1984) 156 CLR 337 at 339: There is no doubt that a bankruptcy notice will be invalid if the sum specified in the notice as the amount due to the creditor exceeds the amount for which the creditor is entitled to issue execution, provided that the debtor gives timely notice under s. 41(5) of the Bankruptcy Act 1966 (Cth), as amended, that he disputes the validity of the notice on that ground. with whom Mason, Brennan, Deane and Dawson JJ agreed. 25 It is important, in my view, that the section uses the word 'unless' and not 'until'. In other words, invalidity of the bankruptcy notice does not only run from the time of the giving of the s 41(5) notice; once a s 41(5) notice is given, invalidity is visited upon the bankruptcy notice from the time of its issue.


case_text: Finally, Ms Riley referred to Alin v Minister for Immigration and Multicultural Affairs [2002] FCA 979 at [13] where Sundberg J indicated that he agreed with what Mathews J had said in Du . His Honour said, at [12], that the statutory declarations under consideration in Alin did not satisfy the Regulations because they made "no reference to the applicant's state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety", that being a component of the definition of "relevant domestic violence" in reg 1.23(2)(b). 77 However, she noted that in Alin , Sundberg J had distinguished Meroka on the basis that the standard form, which had been used in Meroka , had not been used in Alin . Where the standard form was not used, it was necessary, in Sundberg J's view, for the requisite opinion to be expressly stated. Ms Riley noted that the standard form had not been used in the present case. 78 In these circumstances, and relying upon both Du and Alin , Ms Riley submitted that even an implicit expression of opinion, of the kind for which Mr Horan contended, would not be sufficient. The requisite opinion would have to be clearly expressed. 101 In particular, the question may arise as to whether the distinction that Sundberg J drew in Alin between a statutory declaration on a form approved by the Department, which may contain implicit statements of opinions, and a declaration not in that form, which may not, is correct. It is fair to say that Sundberg J referred to the difference between the form used in Meroka , and that used in Alin , as a basis for distinguishing Meroka . However, his Honour did not explain, in any detail, why the difference in the form of the declarations used warranted a different result, at least in terms of whether an opinion could be "implicit". It is arguable that the broader and more flexible approach taken by Ryan J in Meroka was not intended to be so constrained. 102 It is also arguable that the gloss that Sundberg J placed upon reg 1.26, in [12] of Alin , namely that the competent person must indicate that he or she "was aware of the definition of domestic violence in reg 1.23(2)(b)", and refer to "the applicant's state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety" is not warranted by the terms of the regulation itself. 103 In any event, it seems to me that these issues are not properly ones for me to determine. They do not arise directly under the notice of appeal. Their only relevance lies in whether relief should be refused on the basis of futility. For the reasons already given, I do not think that remittal would be futile. 104 The question that next arises is, to which body should this proceeding be remitted? As previously indicated, Mr Horan submitted that the matter should be remitted to the MRT. That would have the obvious advantage, for the appellant, of allowing him the opportunity to file further statutory declarations that may meet the formal requirements of reg 1.26. That assumes, of course, that such statutory declarations would be forthcoming. That is an assumption that perhaps should not too readily be made. It may be difficult to persuade a competent person to express the opinions set out in that regulation, at least in circumstances where the declarant has no actual knowledge of the facts said to amount to domestic violence.


case_text: In developing that submission, Mr Horan argued that the concept of onus of proof has no place in administrative proceedings, such as those conducted by the MRT. He referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 (" McDonald ") at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 ; (1999) 86 FCR 567 at [35] per Merkel J, with whom Carr J agreed; and Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 424-5 per Brennan J. He submitted that such proceedings are not adversarial in nature. The MRT is an inquisitorial body which has powers to make inquiries and to obtain additional information. It is not a curial body that decides cases in accordance with principles of evidence, or by determining the incidence of the burden of proof.


case_text: The MRT noted that the provisions of Div 1 had been extensively considered by the Federal Court, and that the Division had been described variously as "a deeming mechanism": Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 ; (2002) 117 FCR 251 (" Meroka ") at [5]; a "triumph of form over substance": Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 (" Ibrahim ") at [40]; and as a "mechanical mode of proof": Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503 at [40] .


case_text: Ms Riley also referred to Du v Minister for Immigration & Multicultural Affairs [2000] FCA 1115 , where Mathews J said at [18]-[19]: "The Regulations are in quite specific and peremptory terms. It is not sufficient compliance, in my view, with these Regulations for a competent person simply to note the consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person. This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. None of this has been complied with here." 75 Finally, Ms Riley referred to Alin v Minister for Immigration and Multicultural Affairs [2002] FCA 979 at [13] where Sundberg J indicated that he agreed with what Mathews J had said in Du . His Honour said, at [12], that the statutory declarations under consideration in Alin did not satisfy the Regulations because they made "no reference to the applicant's state of mind, namely that the violence caused the applicant to fear for or be apprehensive about his personal well-being or safety", that being a component of the definition of "relevant domestic violence" in reg 1.23(2)(b). 78 In these circumstances, and relying upon both Du and Alin , Ms Riley submitted that even an implicit expression of opinion, of the kind for which Mr Horan contended, would not be sufficient. The requisite opinion would have to be clearly expressed.


case_text: Mr Horan referred to, and relied upon, what he submitted was an analogous case, Huang v Minister for Immigration & Multicultural Affairs [2001] FCA 901 (" Huang ") at [21]-[26]. In that case, Drummond J set aside a decision of the Immigration Review Tribunal ("the IRT") (the predecessor to the MRT) the reasoning of which had been in very similar terms to that of the MRT in the present case. Mr Horan submitted that, contrary to the judgment of the Federal Magistrate below, the MRT's finding in this case was tainted by its failure properly to grasp the principles applicable to administrative proceedings, at least in relation to matters such as the incidence of the burden of proof. 33 In Huang , the question that arose for determination was whether the IRT's comments, in its reasons for decision, indicated that it had disposed of the case against the applicant by deliberately refraining from making findings on relevant matters. It was said to have done so because it considered that the responsibility for clarifying the relevant facts rested with the applicant, and she had failed to discharge the onus she bore in that regard. 34 The particular passage at [25] in the IRT's reasons for decision that gave rise to this issue was the following: "An applicant for a visa needs to satisfy all of the criteria set out in the legislation for that visa. If the Tribunal is uncertain or unable, on balance, to find whether the facts exist to entitle the Applicant to the visa sought, a decision is to be made against her (see Re Ferreras , IRT Decision 299, 2 September 1991)." 35 The IRT went on to say that the visa applicant, "on balance", had been unable to satisfy the particular requirements of the Regulations . 36 Speaking of these passages, Drummond J stated at [18]-[26]: "The respondent submitted that the significance of what the Tribunal said in par [25] was to be found in s 65 of the Act. Before the decision-maker (whether that be the Minister, his delegate or the Tribunal) is entitled to grant a visa of the kind sought by the applicant, the decision-maker must be satisfied, among other things, that the other criteria (ie, other than the health criteria) for the visa in question that are prescribed by this Act or the Regulations have been satisfied: see s 65(1)(a)(ii). It was then submitted that all the Tribunal did by making the comments in par [25] was acknowledge that the task for it in determining whether to grant the applicant her student visa in accordance with s 65(1)(a)(ii) was to determine whether, at the end of the day, it was satisfied that criterion 560.213 was complied with, which required it to be satisfied that condition 8202 was substantially complied with. It was said that par [25] should not be read as a statement by the Tribunal that it approached the case on the basis that the applicant must fail unless she discharged the persuasive burden of proving to the civil standard of proof the facts necessary to show that this particular criterion and this condition had been complied with, ie, the facts necessary to show that she was entitled to the visa she sought. Respondent's counsel, correctly in my opinion, accepted that common law concepts of onus of proof have no role in proceedings in the Migration Review Tribunal. See McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356 - 357, 366 and 369; Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 and cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 282 - 283. (To say that notions of onus of proof are irrelevant is not, however, to say that it is not in some circumstances appropriate for the Tribunal to have regard to common law standards of proof, as opposed to the incidence of the burden of proof, and to reach conclusions of fact on some matters only if satisfied as to the existence of those facts "on the balance of probabilities arising from the available information before the decision-maker". See Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1999) 84 FCR 411 at 417 - 420.) These competing submissions necessarily invite the Court to determine just how the Tribunal reasoned its way to dismissing the applicant's application on this ground. I was reminded that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon judicial review by over-zealously seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Wu Shan Liang at 272. This principle of judicial restraint applies to all reviewable administrative decisions including those of the Tribunal. But it does not, I think, apply in the same way to all such decisions. The rigour with which it constrains a court in examining a decision-maker's reasons will reflect the nature and role of the particular decision-maker. Members of the Migration Review Tribunal perform a significantly different function from public servants in the mainstream of federal executive activity who, from time to time, are called upon to make administrative decisions as part of a range of duties conferred on them. The Tribunal is a specialist decision-maker charged with reviewing lower-level administrative decisions. The obligation imposed by s 368 of the Migration Act 1958 (Cth) to provide in written form both reasons and findings, in the context of its decisions being subject to judicial review, shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against an applicant. The principle of restraint is one that cautions against too zealous a search for error. It is not a principle that immunises the Tribunal's reasoning from that critical examination which is part and parcel of the function of a court charged with review of the Tribunal's decision to see if it is flawed with reviewable error of the kinds listed in s 476 of the Act. In Re Ferreras [1991] IRTA 299 (2 September 1991), the Immigration Review Tribunal reviewed the refusal to grant the applicant a visitor visa. It set out in par [7] of its reasons the criteria prescribed for the grant of such a visa and, in pars [11] to [13], turned to two of those criteria, saying: "Criteria J and K comprise what is now commonly classified as the 'bona fides' requirement. They effectively prescribe that the Tribunal must be satisfied on the balance of probabilities that the principal's proposed visit to Australia is 'genuine' and not intended to enable her to become a permanent resident of Australia" The Tribunal then went on to consider various decisions in the Administrative Appeals Tribunal and a decision of Fox J in this Court. It concluded that the effect of these decisions was summed up in a dictum in the Tribunal to the following effect: "... 'as a matter of common sense', to use His Honour's words, he who asserts, or seeks a result, must prove. Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim." This dictum deals with both the incidence of the persuasive burden of proof and the standard to which proofs must rise to justify a finding of fact. The Tribunal noted the decision of the Full Court in McDonald and said, erroneously, that: "The result flowing from the Court's dicta however do not appear to be much different from that raised by the decisions referred to above.". The Tribunal concluded: "... When the whole of the evidence has been considered against the statutory requirements and a Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. In the context of the instant case if having carefully considered the whole of the evidence, the picture is still unclear as to whether there exists an intention to make a 'genuine' visit such that the Tribunal on the balance of probabilities is not able to make a finding in this regard then the criterion has not been satisfied and the application for the visa must fail." However, the tenor of the decision in Re Ferreras is that, though it may be inappropriate to speak of a party bearing a persuasive burden of proof as does a party to litigation in the courts, the practicalities are that in proceedings in the Tribunal the visa claimant has the onus of proving, on the balance of probabilities, the facts fundamental to satisfying the statutory criteria for the visa and will fail if that is not done. For the reasons given, such an approach is wrong. It is difficult to know from the reasons given by the Tribunal just how it reasoned its way to its ultimate conclusion against the applicant. But having referred to Re Ferreras , it may well be that it followed the erroneous approach suggested in that case and regarded the applicant as bearing the persuasive burden of proof to the civil standard of all facts necessary to enable the Tribunal to determine whether it was satisfied that the applicant was entitled to the student visa in question." 37 Mr Horan submitted that the MRT, in the present case, had fallen into exactly the same error regarding the onus of proof as did the IRT in Huang . He submitted that: "... the error in the Tribunal's approach, and its misunderstanding of the legal principles, cannot be overcome by a "fair reading" of the Tribunal's reasons for decision. The Tribunal impermissibly imposed on the appellant a persuasive burden in relation to establishing that his relationship with the nominator was genuine and continuing at the time of application. The reference by the Tribunal to "the 'common sense' burden of establishing facts" was more than simply "unfortunate". It is an indication of serious error made by the Tribunal in performing the task entrusted to it." (footnote omitted) 38 Mr Horan next anticipated the reply that the respondent Minister was likely to make, assuming that his primary submission was successful. He recognised that it would be submitted that even if the MRT had fallen into the error identified, it had correctly found that the appellant could not meet the criteria to be satisfied at the time of the decision, under cl 820.221 of Sch 2, which require an applicant for a spouse visa to continue to meet the requirements of the applicable subclause, unless a relevant exception exists. The only relevant exception that could be invoked was that relating to domestic violence. The Minister could be expected to submit that it would be futile to remit this matter to the MRT for rehearing, given that its findings regarding the statutory declarations and the police records were unassailable. In other words, the appellant's application was certain to be rejected because it could not meet the requirements of reg 1.26 and reg 1.24(2)(a)(ii). 39 As previously indicated, the Federal Magistrate did not consider any of the grounds of appeal that related to the statutory declarations and police records. That was because his Honour found no error on the MRT's part in relation to the burden of proof, and that put an end to the appellant's case. 40 Mr Horan submitted that if the MRT did err by improperly imposing upon the appellant the burden of proof to establish that his relationship with the nominator was genuine and continuing, at the time of the application, the matter should be remitted to the MRT to be heard and determined according to law. He submitted that it would not be futile to remit the matter because the MRT, acting correctly, might well conclude that the requirements regarding the statutory declarations and the police records had been met. 41 In that regard, Mr Horan noted that the relevant provisions of the Regulations , and in particular cl 820.221(3) of Sch 2, created an exception to the general requirement that, in order to satisfy the criteria for the grant of a sub-class 820 visa, the applicant must be the "spouse" of the nominator at the time of decision. Normally, this must be at least two years after the date of application. 82 It is difficult to distinguish the reasoning of the MRT that is impugned in the present case from that of the IRT, which was held by Drummond J, in Huang , to be flawed. Indeed, in both cases, the relevant tribunal adopted precisely the same formulation of the law governing the burden of proof in administrative review: see Huang at [22], and compare [38] of the MRT's reasons for decision. 83 Ms Riley submitted that Huang did not decide, as a matter of ratio, that the language used by the IRT in that case demonstrated that it had determined the case erroneously, on the basis that the applicant carried a persuasive burden of proof. That was because Drummond J went on to find that the IRT's reasons for decision were also erroneous in other respects, and his Honour did not specifically state that the application for review, that was granted, was allowed on the basis of a mistaken allocation of the burden of proof. 84 I am not persuaded by this submission. Drummond J made it abundantly clear, in Huang , when he concluded that there was reviewable error under s 476 of the Migration Act 1958 (Cth), that the IRT's entire approach to the burden of proof was misconceived. The fact that his Honour found several additional errors in the IRT's reasons for decision, any one of which would have been sufficient to vitiate that decision, does not mean that what he had to say about its treatment of the burden of proof amounted to mere dicta. 85 In any event, even if Drummond J's observations were dicta, they were certainly carefully reasoned, and are worthy of serious consideration. The principle of comity would suggest that I should follow his Honour's analysis unless persuaded that it was wrong. Far from being so persuaded, I consider what his Honour said to have been correct. 86 Ms Riley then submitted that there was an inconsistency between Huang and VSAF . If that were so, I would plainly be bound by VSAF , that being a decision of the Full Court. However, in my view, there is no such inconsistency. In the present case, the MRT analysed the evidence before it through the prism of the burden of proof. In VSAF , there simply was no evidence upon which the MRT could be satisfied of the requisite matters. 87 Of course, the MRT in this case had to be satisfied of the various matters set out in the Regulations before it could grant the appellant the spouse visa that he sought. However, it is one thing to recognise that a statute requires that a state of satisfaction be reached. It is altogether another thing to approach the question whether such satisfaction has been achieved by asking whether an onus of proof has been discharged. The latter reflects an approach that is curial, rather than inquisitorial. As Huang makes plain, a decision maker who adopts such a curial approach asks the wrong question. 89 In my view, the observations of Drummond J at [20] in Huang regarding Wu Shan Liang apply with equal force to the present case. The MRT was plainly confused about the distinction between the onus of proof in curial proceedings, and how a decision maker determines facts in administrative review. That confusion was most clearly manifested by its discussion at [40] of its reasons for decision. The reference to "common sense" (which is in fact a term used to explain the axiom that "he who asserts must prove", in a curial context), was invoked by the MRT, mistakenly, to explain, and justify, a finding made in an entirely different, and purely administrative context. 93 It follows that I disagree, with respect, with the learned Federal Magistrate who concluded that the MRT's decision, though somewhat confused, could nonetheless be saved by application of the principles set out in Wu Shan Liang . His Honour did not have the benefit, as I did, of being referred to the judgment of Drummond J in Huang . Had that case been drawn to his attention, he may well have come to a different conclusion. I would therefore uphold the various grounds of appeal that raise the MRT's treatment of the burden of proof as the basis for challenge.


case_text: The MRT noted that the provisions of Div 1 had been extensively considered by the Federal Court, and that the Division had been described variously as "a deeming mechanism": Meroka v Minister for Immigration and Multicultural Affairs [2002] FCA 482 ; (2002) 117 FCR 251 (" Meroka ") at [5]; a "triumph of form over substance": Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279 (" Ibrahim ") at [40]; and as a "mechanical mode of proof": Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503 at [40] . 73 With regard to the statutory declarations, Ms Riley submitted that there was nothing implicit in them that suggested that the competent person held the opinions required under reg 1.26. She referred to Ibrahim at [40] where Wilcox J observed that if the visa applicant fails to obtain appropriate statutory declarations by the required two competent persons, the visa application has to be refused. That is so even if the decision maker is totally satisfied that the applicant has suffered domestic violence at the hands of his or her spouse. 105 Of course, once the formal requirements associated with the statutory declarations are met, the Regulations do not require or permit the MRT to come to any decision as to whether domestic violence actually took place. The scheme is one of deeming provisions, and as Wilcox J pithily observed, represents a "triumph of form over substance". 106 Ms Riley submitted that if I were to conclude that the appeal should be allowed because of what the MRT had said regarding the burden of proof, and if I were not persuaded that it would be futile to remit the matter for further consideration, it ought to be remitted to the Federal Magistrates Court, and not to the MRT. That was because the challenge to the validity of the MRT's decision, regarding the statutory declarations and the police records, had not been determined. The application for judicial review before the Federal Magistrates Court, therefore, had still to be completed. 107 I infer that it did not escape Ms Riley's attention that remittal to the Federal Magistrates Court, rather than the MRT, might preclude the appellant from seeking to rectify any defects associated with the statutory declarations by filing new ones.


case_text: The MRT then stated that it was established law that it was not its role, nor that of any decision maker, to assess whether domestic violence had taken place. In the words of Ryan J in Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658 ; (2004) 138 FCR 181 (" Kozel "), it was "the Tribunal's responsibility to assess whether statutory declarations have been furnished which express the opinions mandated by reg 1.26". 14 It should be noted that reg 1.26 is in the following terms: " 1.26 Statutory declaration by competent person A statutory declaration under this regulation: (a) must be made by a competent person; and (b) must set out the basis of the competent person's claim to be a competent person for the purposes of this Division; and (c) must state that, in the competent person's opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and (d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and (e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and (f) must set out the evidence on which the competent person's opinion is based." 15 It should also be noted that reg 1.24(1)(a)(ii) provides that the evidence that may be relied upon to support a contention that a person has suffered or committed domestic violence includes: "a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory". 52 Once again, Mr Horan submitted that it was "implicit" in Ms Fraser's two statutory declarations that she was of the opinion that the appellant had suffered domestic violence committed by the nominator. He submitted that in considering whether a statutory declaration contains the requisite opinion, it must be read fairly, and should not be "scrutinised over-zealously with a view to detecting some inadequacy of expression from which error may be imputed": see Kozel at [30] per Ryan J. He submitted that in many, if not most, cases, the competent person would have no direct knowledge of the applicant's relationship with his or her spouse, and would therefore be in no position to do other than recount the history given by that person. Even if there were objective signs of violence having been inflicted, it would be difficult for a doctor, or a social worker, to proffer an opinion that the injuries in question had been inflicted in the course of domestic violence, still less that a particular person had inflicted them. He submitted that the Regulations should be construed benevolently, having regard to their evident purpose, which was to allow persons who had been subjected to domestic violence, and forced to live apart, to maintain a claim for a spouse visa. He further submitted that the Regulations should not be construed so as to require the competent person to act as an investigative, or fact finding body, a task which many such persons would either eschew, or not be qualified to undertake. 53 In that regard, Mr Horan submitted that Dr Van Dort, in his statutory declaration, had stated that he had been given an account of the domestic violence suffered by the appellant, and committed by the nominator, and that he had been shown corroborating evidence in the form of police reports and photographs. It was in that context that Dr Van Dort stated that the appellant "was distressed and I feel that he was depressed". In those circumstances, Mr Horan submitted, it was by no means difficult to infer that Dr Van Dort was stating an opinion that the appellant had suffered domestic violence, as required by reg 1.26, and that he held the opinion that this had been inflicted by the nominator. The same could be said of Ms Fraser's statutory declarations. 54 Mr Horan noted that the conduct of the nominator, as described by the appellant, was capable of amounting to domestic violence within the meaning of the Regulations . It involved violence against the appellant's property, and at least the implicit threat of violence against him. It must have caused him to fear for, or to be apprehensive about, his personal well-being or safety.


case_text: The MRT stated, as its reason for refusing the appellant's application: "36. Other than the evidence of the Applicant, there is no independent reliable evidence attesting to the state of the relationship from family or friends. Whilst the Tribunal is satisfied that the Applicant and Ms Khan may have shared some form of a relationship after the Applicant's move to Perth in or around September 1998 and when the marriage broke up at the end of June 1999 the Tribunal finds that the relationship falls short of a genuine and continuing married relationship as required by law. It would be fair to described [sic] as lacking the evidence relating to indices of such a relationship as set out regulation 1.15A of the Regulations . 37. When considering the question of burden of proof in administrative review, the Tribunal is guided by various Administrative Appeals Tribunal ('AAT') [sic] and the Federal Court on the subject. Whilst acknowledging that an administrative tribunal should not 'seek to determine matters ... by strict application of the rules related to onus of proof', Senior Member Ballard in Re Caruana and Australian Telecommunications Commission (1982) 5ALN N30 nevertheless said that 'regard must be had to the application of those rules ... in determining which party has the responsibility of satisfying the Tribunal as to any given fact '. (See also Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196). His Honour Fox J in Ladic v Capital Territory Health Commission (1982) 5 ALN N60 said (at N61) that, 'the term 'onus of proof' (or 'burden of proof') ... was a legal burden, or requirement and could, as a matter of common sense, be said to have rested with the party seeking the result' 38. This view was endorsed by Deputy President Todd in an AAT decision Re Holbrook and Australian Postal Commission (1983) 5 ALN N146 when he said that, 'as a matter of common sense', to use His Honour's words, he who asserts, or he seeks a result, must prove . Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim.' (emphasis added) 39. In McDonald v Director-General of Social Security (1984) 6 ALD 6, the Federal Court was again anxious to avoid the onus terminology. The result flowing from the Court's dicta however does not appear to be much different from that raised by the decisions referred to above. When the whole of the evidence has been considered against the statutory requirements and the Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. 40. The Tribunal finds that the Applicant has not discharged the 'common sense' burden of establishing the facts necessary to enable the Tribunal to reach a finding on the critical issue. The Tribunal is unable to reach a finding that the Applicant was the spouse of Ms Khan at the time of lodgement of the primary application ." (emphasis added) 30 Mr Horan recognised that the MRT had expressly acknowledged at [37] of its reasons for decision that it should not "seek to determine matters ... by strict application of the rules related to onus of proof", and had cited authority for that proposition. He noted, however, that that statement, which was itself unexceptionable, was immediately followed by the various references to onus of proof, or burden of proof, set out at [37] and [38] of the reasons for decision. He submitted that the MRT's belief that the Full Court's admonition in McDonald to avoid such terminology could be reconciled with the very different approach taken in Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196 and Ladic v Capital Territory Health Commission (1982) 5 ALN N60, the cases to which the MRT referred, indicated that it had not understood the full significance of what the Full Court had said upon this subject.


case_text: The MRT stated, as its reason for refusing the appellant's application: "36. Other than the evidence of the Applicant, there is no independent reliable evidence attesting to the state of the relationship from family or friends. Whilst the Tribunal is satisfied that the Applicant and Ms Khan may have shared some form of a relationship after the Applicant's move to Perth in or around September 1998 and when the marriage broke up at the end of June 1999 the Tribunal finds that the relationship falls short of a genuine and continuing married relationship as required by law. It would be fair to described [sic] as lacking the evidence relating to indices of such a relationship as set out regulation 1.15A of the Regulations . 37. When considering the question of burden of proof in administrative review, the Tribunal is guided by various Administrative Appeals Tribunal ('AAT') [sic] and the Federal Court on the subject. Whilst acknowledging that an administrative tribunal should not 'seek to determine matters ... by strict application of the rules related to onus of proof', Senior Member Ballard in Re Caruana and Australian Telecommunications Commission (1982) 5ALN N30 nevertheless said that 'regard must be had to the application of those rules ... in determining which party has the responsibility of satisfying the Tribunal as to any given fact '. (See also Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196). His Honour Fox J in Ladic v Capital Territory Health Commission (1982) 5 ALN N60 said (at N61) that, 'the term 'onus of proof' (or 'burden of proof') ... was a legal burden, or requirement and could, as a matter of common sense, be said to have rested with the party seeking the result' 38. This view was endorsed by Deputy President Todd in an AAT decision Re Holbrook and Australian Postal Commission (1983) 5 ALN N146 when he said that, 'as a matter of common sense', to use His Honour's words, he who asserts, or he seeks a result, must prove . Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim.' (emphasis added) 39. In McDonald v Director-General of Social Security (1984) 6 ALD 6, the Federal Court was again anxious to avoid the onus terminology. The result flowing from the Court's dicta however does not appear to be much different from that raised by the decisions referred to above. When the whole of the evidence has been considered against the statutory requirements and the Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. 40. The Tribunal finds that the Applicant has not discharged the 'common sense' burden of establishing the facts necessary to enable the Tribunal to reach a finding on the critical issue. The Tribunal is unable to reach a finding that the Applicant was the spouse of Ms Khan at the time of lodgement of the primary application ." (emphasis added) 20 Nevertheless, the Federal Magistrate went on to conclude at [21] and [22]: "Reading its reasons carefully, however, and noting that it should avoid the "onus" terminology (see McDonald v Director-General of Social Security (1984) 6 ALD 6), I am prepared to conclude in the present case that the MRT has indeed simply embarked upon its task in a way which led it to a conclusion that it was not satisfied that the evidence before it would allow it to conclude that the relationship in this instance was one of a genuine and continuing married relationship as required by law. Although in paragraph 40 of its decision the MRT states it is "unable to reach a finding that the applicant was the spouse of Ms Khan at the time of lodgement of the primary application", it did so, unfortunately, in the context of that same paragraph where it referred to the "commonsense burden of establishing the facts". Although that is an unfortunate occurrence in terms of the reasoning and the manner in which the MRT has expressed its findings, I am not prepared to conclude that it has in reality done anything more than indicate that it was not satisfied that the appropriate relationship existed as required by law. It seems to me that that principal finding in paragraph 36 of the MRT's decision is not tainted or indeed rendered fatal by the subsequent discussion of the law in relation to a burden of proof. Indeed, it may simply be that the MRT was grappling with the concept of burden of proof against the backdrop of correctly reciting appropriate authorities where it is clear that the application of the rules related to onus of proof are not appropriate for the tribunal and where it is clear that in all the circumstances the MRT had after reciting the arguments advanced on behalf of the applicant who was represented simply made appropriate findings that it was not satisfied in relation to the key issue to be resolved, namely whether or not the applicant and the nominator were in a relationship of a kind required by law for the purposes of the visa application. It had after all considered the statutory declarations and other material before it and did so in the course of its reasoning as required." 21 Having made the findings set out above, in relation to [36] of the MRT's reasons, his Honour concluded that it was unnecessary to go any further and consider the remaining grounds of appeal. These additional grounds challenged the MRT's findings regarding the statutory declarations and the police reports. They contended that the MRT had erred in failing to be satisfied that the domestic violence exception was made out. 22 Mr Horan, who appeared on behalf of the appellant, pro bono, referred firstly to the relevant provisions of the Regulations . These are set out at length at [7] of the Federal Magistrate's reasons for judgment, and it is unnecessary to replicate them here. 23 It is sufficient, for present purposes, to note that cl 820.211(2)(a) of Sch 2 requires that, at the time of application (in this case 12 April 1999), the applicant must be the spouse of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. Under reg 1.15A, a person is the "spouse" of another person if the two persons are in a married relationship within the meaning of sub-reg (1A). They must be married to each other under a valid marriage, and the Minister must be satisfied that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship is genuine and continuing, and that they live together, or do not live separately and apart, on a permanent basis. 24 In forming an opinion as to whether the two persons are in a married relationship, the Minister must have regard to all of the circumstances of the relationship including, in particular, the matters prescribed by reg 1.15A(3) relating to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of their respective commitment to each other. 25 Mr Horan submitted that, in the present case, the MRT had been required to make a finding as to whether the appellant was relevantly the "spouse" of the nominator within the meaning of reg 1.15A. That, in turn, required the MRT to make a finding as to whether their relationship was genuine and continuing, as at the time of application, and in doing so to take into account the matters set out in reg 1.15A(3). 26 Mr Horan submitted that the MRT did not make a finding, on the evidence, as to these matters. It simply concluded that, in the absence of "reliable" evidence, it was unable to "reach a finding on the critical issue", as expressed in [40] of its reasons for decision. He submitted that when the MRT's reasons for decision were read as a whole, it was apparent that it had impermissibly imposed a burden of proof upon the appellant, and thereby committed jurisdictional error. 27 In developing that submission, Mr Horan argued that the concept of onus of proof has no place in administrative proceedings, such as those conducted by the MRT. He referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 (" McDonald ") at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Minister for Immigration and Multicultural Affairs v Hughes [1999] FCA 325 ; (1999) 86 FCR 567 at [35] per Merkel J, with whom Carr J agreed; and Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 424-5 per Brennan J. He submitted that such proceedings are not adversarial in nature. The MRT is an inquisitorial body which has powers to make inquiries and to obtain additional information. It is not a curial body that decides cases in accordance with principles of evidence, or by determining the incidence of the burden of proof. 30 Mr Horan recognised that the MRT had expressly acknowledged at [37] of its reasons for decision that it should not "seek to determine matters ... by strict application of the rules related to onus of proof", and had cited authority for that proposition. He noted, however, that that statement, which was itself unexceptionable, was immediately followed by the various references to onus of proof, or burden of proof, set out at [37] and [38] of the reasons for decision. He submitted that the MRT's belief that the Full Court's admonition in McDonald to avoid such terminology could be reconciled with the very different approach taken in Re Elkington and Minister for Immigration and Ethnic Affairs (1982) 5 ALN N196 and Ladic v Capital Territory Health Commission (1982) 5 ALN N60, the cases to which the MRT referred, indicated that it had not understood the full significance of what the Full Court had said upon this subject. 36 Speaking of these passages, Drummond J stated at [18]-[26]: "The respondent submitted that the significance of what the Tribunal said in par [25] was to be found in s 65 of the Act. Before the decision-maker (whether that be the Minister, his delegate or the Tribunal) is entitled to grant a visa of the kind sought by the applicant, the decision-maker must be satisfied, among other things, that the other criteria (ie, other than the health criteria) for the visa in question that are prescribed by this Act or the Regulations have been satisfied: see s 65(1)(a)(ii). It was then submitted that all the Tribunal did by making the comments in par [25] was acknowledge that the task for it in determining whether to grant the applicant her student visa in accordance with s 65(1)(a)(ii) was to determine whether, at the end of the day, it was satisfied that criterion 560.213 was complied with, which required it to be satisfied that condition 8202 was substantially complied with. It was said that par [25] should not be read as a statement by the Tribunal that it approached the case on the basis that the applicant must fail unless she discharged the persuasive burden of proving to the civil standard of proof the facts necessary to show that this particular criterion and this condition had been complied with, ie, the facts necessary to show that she was entitled to the visa she sought. Respondent's counsel, correctly in my opinion, accepted that common law concepts of onus of proof have no role in proceedings in the Migration Review Tribunal. See McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356 - 357, 366 and 369; Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 and cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 282 - 283. (To say that notions of onus of proof are irrelevant is not, however, to say that it is not in some circumstances appropriate for the Tribunal to have regard to common law standards of proof, as opposed to the incidence of the burden of proof, and to reach conclusions of fact on some matters only if satisfied as to the existence of those facts "on the balance of probabilities arising from the available information before the decision-maker". See Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1999) 84 FCR 411 at 417 - 420.) These competing submissions necessarily invite the Court to determine just how the Tribunal reasoned its way to dismissing the applicant's application on this ground. I was reminded that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon judicial review by over-zealously seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Wu Shan Liang at 272. This principle of judicial restraint applies to all reviewable administrative decisions including those of the Tribunal. But it does not, I think, apply in the same way to all such decisions. The rigour with which it constrains a court in examining a decision-maker's reasons will reflect the nature and role of the particular decision-maker. Members of the Migration Review Tribunal perform a significantly different function from public servants in the mainstream of federal executive activity who, from time to time, are called upon to make administrative decisions as part of a range of duties conferred on them. The Tribunal is a specialist decision-maker charged with reviewing lower-level administrative decisions. The obligation imposed by s 368 of the Migration Act 1958 (Cth) to provide in written form both reasons and findings, in the context of its decisions being subject to judicial review, shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against an applicant. The principle of restraint is one that cautions against too zealous a search for error. It is not a principle that immunises the Tribunal's reasoning from that critical examination which is part and parcel of the function of a court charged with review of the Tribunal's decision to see if it is flawed with reviewable error of the kinds listed in s 476 of the Act. In Re Ferreras [1991] IRTA 299 (2 September 1991), the Immigration Review Tribunal reviewed the refusal to grant the applicant a visitor visa. It set out in par [7] of its reasons the criteria prescribed for the grant of such a visa and, in pars [11] to [13], turned to two of those criteria, saying: "Criteria J and K comprise what is now commonly classified as the 'bona fides' requirement. They effectively prescribe that the Tribunal must be satisfied on the balance of probabilities that the principal's proposed visit to Australia is 'genuine' and not intended to enable her to become a permanent resident of Australia" The Tribunal then went on to consider various decisions in the Administrative Appeals Tribunal and a decision of Fox J in this Court. It concluded that the effect of these decisions was summed up in a dictum in the Tribunal to the following effect: "... 'as a matter of common sense', to use His Honour's words, he who asserts, or seeks a result, must prove. Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim." This dictum deals with both the incidence of the persuasive burden of proof and the standard to which proofs must rise to justify a finding of fact. The Tribunal noted the decision of the Full Court in McDonald and said, erroneously, that: "The result flowing from the Court's dicta however do not appear to be much different from that raised by the decisions referred to above.". The Tribunal concluded: "... When the whole of the evidence has been considered against the statutory requirements and a Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. In the context of the instant case if having carefully considered the whole of the evidence, the picture is still unclear as to whether there exists an intention to make a 'genuine' visit such that the Tribunal on the balance of probabilities is not able to make a finding in this regard then the criterion has not been satisfied and the application for the visa must fail." However, the tenor of the decision in Re Ferreras is that, though it may be inappropriate to speak of a party bearing a persuasive burden of proof as does a party to litigation in the courts, the practicalities are that in proceedings in the Tribunal the visa claimant has the onus of proving, on the balance of probabilities, the facts fundamental to satisfying the statutory criteria for the visa and will fail if that is not done. For the reasons given, such an approach is wrong. It is difficult to know from the reasons given by the Tribunal just how it reasoned its way to its ultimate conclusion against the applicant. But having referred to Re Ferreras , it may well be that it followed the erroneous approach suggested in that case and regarded the applicant as bearing the persuasive burden of proof to the civil standard of all facts necessary to enable the Tribunal to determine whether it was satisfied that the applicant was entitled to the student visa in question."