case_text: The appellant also submitted that the observations of McHugh J and Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [150] and [219] support the proposition that it is open to the Court to take into account the fault of an applicant's adviser. However, their Honours were there considering the question of whether the adviser's default should be taken into account in determining whether an applicant's delay was a discretionary bar to the grant of Constitutional writs. Their observations on that question have no bearing on the issues arising in this appeal. 38 This ground of appeal only needs to be stated to be rejected. What the appellant contends is that, notwithstanding his written notification declining the invitation to attend the oral hearing, the RRT should nevertheless have exercised its power to summons him to attend.


case_outcome: cited

case_text: Sackville J went on at [50] to point out that one of the cases cited by Gleeson CJ for this proposition was R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21 ; [1999] 2 AC 330 (" Ex parte A "). Sackville remarked at [52] that the High Court has not greeted the decision in Ex parte A with "unalloyed enthusiasm"; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441 at [37] [42].


case_outcome: referred to

case_text: As a Full Court said in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [46] , there would be no unfairness when the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. Their Honours said that an appellant cannot complain if his application is rejected because the decision maker without notice to him has rejected what was put forward; see also the observations of a Full Court in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 (" S58 ") at [25] [26] which are apt in the present case. I reject the appellant's submission that S58 is distinguishable. 36 The appellant also submitted that the RRT was bound to advise him as a matter of procedural fairness that his application was doomed to failure if he did not attend the hearing. In my opinion the invitation dated 10 November 2003 was sufficient notice to the appellant of the risk; see S58 at [25] [26].


case_text: In B41, Dowsett J referred at [23] to two Victorian decisions to the same effect; see SBA Foods Pty Limited v Victorian WorkCover Authority & Anor [2001] VSC 276 at [274] [283] per Gillard J; see also Stefanovski v County Court of Victoria & Anor [2000] VSC 417 at [175] [190] per Gillard J.


case_title: Stefanovski v County Court of Victoria & Anor [2000] VSC 417


case_text: Indeed, in STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [19] , Selway J was of the view that Ex parte A does not reflect the law in Australia. His Honour considered that there may be some limited circumstances where it might be arguable that acts by Departmental officers or others could invalidate a Tribunal decision even though the Tribunal was unaware of them; see at [22] citing, inter alia, Hot Holdings at 455-456 per Gaudron, Gummow and Hayne JJ.


case_text: An appeal from Selway's decision at first instance was dismissed without the need to consider that question; see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 251.


case_text: In NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that "the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance". Bennett J referred to this decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] . Her Honour also referred to the observations of Sundberg and Hely JJ in VNAA that the RRT is authorised to proceed even though an applicant's failure to attend involved no fault on his or her part.


case_text: Dowsett J's observations in B41 as to the approach to be taken in such matters is consistent with the remarks of Sundberg and Hely JJ in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 (" VNAA ") at [15] [16]. Their Honours there pointed out that the scheme of Part 7 of the Act expressly contemplates that in particular circumstances an applicant will not attend a hearing including cases involving no fault of the applicant. They said that, notwithstanding this, the RRT is authorised to proceed to decide the review in the applicant's absence. 25 In NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that "the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance". Bennett J referred to this decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] . Her Honour also referred to the observations of Sundberg and Hely JJ in VNAA that the RRT is authorised to proceed even though an applicant's failure to attend involved no fault on his or her part.


case_outcome: considered

case_text: appeal came on for hearing before Gordon J. On 2 September 2008, for reasons which her Honour then published, the appeal from the Federal Magistrates Court was allowed. The matter was remitted to the Tribunal to be heard and determined according to law: SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198. On 19 February 2009, a differently constituted Tribunal decided to affirm the refusal decision made by the Minister's Delegate. The Appellants made a further judicial review application to the Federal Magistrates Court. On 15 June 2009, for reasons given that day, the Federal Magistrates Court dismissed the Appellants' judicial review application. It is from that decision that the Appellants appeal once more to this Court. The basis upon which the male Appellant claimed a protection visa was set out in a statement annexed to the visa application. In her judgment in the first appeal Gordon J offered (at [5]) the following summary of the basis of the claim, which I gratefully adopt: The first appellant was born in 1960. He claimed he owned and ran a freshwater fish farm in Fujian province near Fuqing city and that his life was uneventful until he was contacted by a distant cousin in August 2006. That cousin was in dispute with local authorities from Putian city over the alleged confiscation of his land and a failed promise by the government to deliver compensation to the landholders whose land had been confiscated. The first appellant claimed that at that time he gave this cousin a job working on his fish farm. In October 2006, the first appellant claimed that his cousin's brother (who had organised for local farmers near Putian city to protest about the confiscation of his land) had been arrested by the Public Security Bureau ("the PSB"). The first appellant's cousin was required to return to his hometown. The first appellant gave his cousin some money (10,000 Yuan) and a letter to a friend (Mr Zhou) whom the first appellant knew in Putian City, and who worked for the local government. The first appellant also telephoned Mr Zhou to plead for his help 'to save' the cousin's brother, who was soon released. The cousin and his brother continued to be embroiled in disputes with the local authorities over the land confiscation. On 11 November 2006, the first appellant was contacted by Mr Zhou who informed him that there had been a major conflict and that some farmers had been injured. Later that day the first appellant's cousin contacted him and told the first appellant that he and his brother were in hiding. The first appellant picked them up and took them to a 'secret place'. The next day (12 November 2006) the police attended the first appellant's farm and questioned him for two hours. The police came again five to six times, but they could not find anything. The first appellant told them nothing. The first appellant was scared and 'had to start applying' to go overseas for his own safety. The first appellant helped to arrange for the safe passage for his cousin and cousin's brother out of China to Taiwan on a fishing boat. However, the cousins were discovered by the navy and immediately arrested. The first appellant was concerned that he would be exposed by his cousins and immediately went to Guangzhou. On 17 December 2006, the first appellant left China from Guangzhou. The first appellant claimed that since leaving China the police have come to his home with an arrest permit on three occasions and he has been denounced as a protector of political dissidents. The first appellant claimed he is on the blacklist of the PSB and will be arrested as soon as he returns to China. I have chosen to refer to the person whom her Honour has described as the "first appellant" in the passage quoted as the "male Appellant". No different claim was made before the Tribunal on the second review hearing. However, as will be seen, the evidentiary foundation for that claim at that hearing differed in a crucial respect from that provided to the Tribunal at the time when it first reviewed the Minister's Delegate's visa refusal decision. On this occasion, the Appellants advanced the following grounds of appeal from the decision of the Federal Magistrates Court: Grounds The Federal Magistrates erred in law. The Federal Magistrates was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings. Particulars The Tribunal failed to comply with its obligations under s 424A of the Act. The Tribunal failed to comply with its obligations under s 425 of the Act. The Tribunal failed to consider my claims properly and fairly. Tribunal made its finding actually based on unwarranted assumption; the Tribunal ignored or failed to consider a claim I made to it; the Tribunal ignored other relevant materials which was before it; and the Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact. [sic] The so-called grounds of appeal are so vaguely stated as to be devoid of meaning. That position is not really ameliorated by the so-called particulars, which are noteworthy not only for their generality of expression but also for their failure to focus upon what is alleged to be error on the part of the Federal Magistrates Court, as opposed to the Tribunal.


case_text: learned Federal Magistrate (at para 7) had observed: "There was no obligation on the Tribunal to make a disclosure pursuant to s 424A in this case. That is because the Tribunal decision turned upon the applicants' own evidence, both oral and written." The reason assigned by the Tribunal accurately, if generally, describes what came to govern the fate of the Appellants' review application before the Tribunal. A more precise description was offered by the Minister in his submissions: "The Tribunal relied upon internal inconsistencies and inconsistencies in the oral evidence provided by the [male Appellant] to the differently constituted Tribunals". As the Minister correctly submitted, "such reliance does not invoke s 424A obligations": SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190. There was no error in the learned Federal Magistrate's dismissal of the judicial review application insofar as it relied upon an alleged breach of s 424A of the Act by the Tribunal. Subject to exceptions not presently relevant, s 425 of the Migration Act obliged the Tribunal to invite the Appellants to appear before it, "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The Tribunal extended such an invitation to the Appellants. They accepted that invitation and appeared before the Tribunal. The learned Federal Magistrate's description of and conclusion with respect to what then transpired was as follows (at para 11): It is plain from the record of what occurred at the hearing that the Tribunal entertained serious credibility concerns about the first applicant's claims and his evidence. The Tribunal proceeded on a somewhat different basis than the delegate. The delegate's decision centred on the vagueness of the applicants' claims and the lack of supporting detail. The first applicant attempted to deal with that defect before the Tribunal by providing details, both orally and in the form of documents. The Tribunal did not accept either the plausibility of his evidence or the authenticity of his critical documents. I am satisfied from the detailed recitation of what occurred at the Tribunal hearing that the Tribunal put the applicants on notice of the essential and significant issues upon which the review would turn. On this basis, the learned Federal Magistrate concluded that the Appellants had been given a fair opportunity to present their case and expressed satisfaction that there had been no breach by the Tribunal of s 425 of the Migration Act . It is evident from the learned Federal Magistrate's reasons for judgment that the Appellants filed no written submissions in advance of the hearing and that the male Appellant made a general complaint about a lack of fairness attending the proceedings before the Tribunal.


case_text: these were not express bases of challenge in the Federal Magistrates Court to the Tribunal's decision in respect of the rehearing of the review application, leave to raise these grounds would be necessary: see H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. In their joint judgment in that case (at para 7, p 45) Branson and Katz JJ draw attention to an observation earlier made in the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main area for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.


case_title: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1


case_outcome: applied

case_text: to add a ground of appeal not raised below should only be granted where it is expedient in the interests of justice so to do: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] . Inevitably, whether or not to grant leave to add such grounds to the notice of appeal requires some exploration of their merits. For reasons which follow, that exploration persuades me that, in the particular circumstances of this case, the Appellants should have leave to raise the grounds identified in para 24 above. The consideration arising from the letter of 6 March 2007 which prompted me not to dismiss the appeal peremptorily but rather to adjourn the hearing so as to afford the Minister an opportunity to make further submissions and thereafter to reserve my decision arose from the words emphasised at the foot of the letter of 6 March 2007. It is evident on the face of this letter that, at least purportedly, it was created after the Appellants had both left China and lodged their protection visa application here, that it is referring to steps which have just been taken in light of recent events with which the male Appellant was concerned and that a duplicate of the letter is to be sent, materially, to him as well as to the addressees of the letter. While, if genuine, the letter of 6 March 2007 does not corroborate the detail of the claim made by the Appellants, it does corroborate the claim in the general sense of confirming that the male Appellant had held a responsible position at the Aquatic Farm, had been involved in some sort of "dissident" activity and had, in so doing, come to the adverse attention of the People's Security Bureau (PSB). It is truly, in this sense, a "critical document".


case_text: was a particularly powerful submission, which has occasioned me quite some angst with respect to whether it is open to find any error in the decision of the Federal Magistrates Court, having regard to the proper role of that court as a reviewing court on judicial review. Ordinarily, a conclusion reached by the Tribunal concerning the credibility of a visa applicant is a finding of fact "par excellence" for the Tribunal to make: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at [67] . Further, when addressing the subject of the judicial review of findings of fact in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356 ( Bond's case ) Mason CJ observed: [At] common law, according to the Australian authorities, want of logic is not synonymous with error of law So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place


case_title: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ; Applicant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 ; (2003) 77 ALJR 1165

case_text: Bond's Case , Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Applicant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 ; (2003) 77 ALJR 1165 has, materially, been decided. The implications of the judgments delivered in that case in relation to the judicial review of fact finding form the centrepiece of a valuable discussion by Aronson M, Dyer B, Groves M in their work, Judicial Review of Administrative Action (4 th ed, Law Book Co, 2009) ( Judicial Review of Administrative Action ) at p 265 et seq on the subject "Challenging seriously irrational or illogical fact finding". While the whole of that discussion repays study in the present context, the following passage (at pp 271-273) is, in my opinion, particularly apposite: Lee J dissented as to the result in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs, but his Honour's statement of the relevant principles was not affected: 'The [Refugee Review] Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. A determination that is based on illogical or irrational findings or inferences of fact may be shown to have no better foundation than an arbitrary decision and accordingly the review process will be unfair and will not have been conducted according to law. Here, of course, the words "irrational" or 'illogical' are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning, and are analogues of arbitrary or perverse. They are not sued with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view. Illogical or irrational findings or inferences of fact upon which a determination is based examinable as part of the matter that is subject to judicial review pursuant to the application for a prerogative or constitutional writ.' The Federal Court accepts that whether a decision is sufficiently irrational to meet S20's standard 'will, in our view, always be a matter of degree", but it rejects the English approach to Wednesbury , which sets a more demanding standard of reasonableness where import human rights are at stake. Allsop J gave the following summary: 'There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.' [4.435] A real question now arises as to whether the courts will or should continue to stretch the procedural fairness rule of natural justice to accommodate a complaint that the decision-maker has made a serious factual mistake. It might be helpful to explore that question in the context of the House of Lords decision in R v Criminal Injuries Compensation Board; Ex parte A . The board had disbelieved the applicant's story, without hearing directly from her or at all from the police doctor who had examined her. The police had encouraged the applicant to adopt a passive role, on the assurance that they would do everything necessary at the board hearing. However, the police grossly misrepresented the doctor's report, innocently as the House was prepared to assume. With no blame attaching to the board, their Lordships granted review on either of tow bases, namely, fundamental error of fact and breach of natural justice. Natural justice was their preferred ground, but Ex parte A has since been endorsed for its recognition of fact review. If the English position does indeed allow review for fundamental error of fact, it goes considerably further than S20 , because such error can occur without procedural unfairness, irrationally or illogicalilty. We doubt that Australian common law will go that far. The High Court has doubted Ex Parte A's reasoning, at least so far as it was based upon natural justice, and quite possibly on the "error of fact" basis as well. The High Court suggested that Ex Parte A might be better analysed as involving a procedural error on the part of the police, thereby attracting review under ADJR's "procedural error" ground where ADJR applies. [Footnote references omitted] Like the learned authors of Judicial Review of Administrative Action , I conceive that the passage quoted from the judgment of Lee J in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 contains an accurate statement of relevant Australian principle in light of S20/2002 .


case_title: WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87


case_text: all due respect to the Tribunal and in the sense they are used by Lee J, the adjectives "ignorant", "arbitrary" and "perverse" aptly apply to a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document. What follows from this, to take up sentiments voiced by Allsop J (in SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 at [10] ) in the passage I have quoted from Judicial Review of Administrative Action , is that the Tribunal has failed to attend conscientiously and appropriately to its statutory obligations and the Federal Magistrates Court has failed to apprehend this. An alternative way of approaching matters is also exposed by the learned authors of Judicial Review of Administrative Action under the heading "Fact review by the imaginative uses of other grounds" (at p 273 et seq). While I should respectfully question the aptness of the descriptor, "imaginative", it is nonetheless, in my opinion, a denial of procedural fairness to a visa applicant for the Tribunal to subject him to questioning, upon the answers to which findings as to credibility come to be made, upon a false factual premise with respect to a critical document. That false premise is that the letter of 6 March 2007 was not addressed to him. In a narrow sense that is true but, reading the letter as a whole, it is plain on its face that he was an intended addressee insofar as the dispatch of duplicates was concerned.


case_text: their discussion of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 ( Dranichnikov ) in the passage in their work to which I have drawn attention, the learned authors of Judicial Review of Administrative Action observe (at p 275) that this decision "has the effect of extending the procedural fairness rule to the situation where the decision-maker has substantially 'switched off' during an important phase of the pre-decisional process". I respectfully agree. That, with respect, is precisely what the Tribunal as constituted for the rehearing in this case did. To make that observation is not in any way to diminish the very real difficulty under which a tribunal dealing with an unrepresented layperson not fluent in English must labour when conducting a review on the merits but is to acknowledge that such a tribunal must nonetheless at least come to grips with the claim as made. In a footnote (p 275, fn 606) in this part of their work the learned authors of Judicial Review of Administrative Action instance SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 ; (2007) 238 ALR 611 ( SZIFI ) as a case which, even though Dranichnikov is not mentioned, offers a good example of the type of procedural fairness error for which they contend Dranichnikov stands. In SZIFI Greenwood J observed (at 614, [43]): [43] Once it is established that the tribunal has asked itself the wrong question by, for example, asking whether it can be satisfied that the appellant faces a real chance of persecution should he return to the People's Republic of China, or has identified the wrong issue, or taken into account, in one part of its deliberations, a notion that the appellant is an Indonesian rather than a Pakistani national, the tribunal is seen to have failed to provide the appellant with procedural fairness and thus jurisdictional error arises ( Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ). The repository of the power is constrained by an obligation to act reasonably by providing procedural fairness. A decision made in light of a failure to act reasonably is not a decision made under the Act for the purposes of s 474. I do not accept that the basis for this type of jurisdictional error is as confined as the Minister has propounded or that regard to the cases cited bears this out. Rather, each of these cases offers but another example of a procedural fairness error on the part of the Tribunal in failing truly to engage with the claim as presented by the visa applicant. That this is so is, in my opinion, starkly evident in the following passage from the joint judgment of Lee and Moore JJ in WAIJ (at 580, [53] [54]): [53] It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant's case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts. [54] It follows that the tribunal did not accord to the appellant practical fairness and justice in the tribunal's conduct of the review. Accordingly, the decision of the tribunal involved jurisdictional error and was not a decision authorised by the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs ... at [24], [32] per Gummow and Callinan JJ. Here, the Tribunal has discounted the letter of 6 March 2007 on the basis of credibility findings concerning the male Appellant but these findings, in turn, are tainted by responses to questions put to the male Appellant at the hearing and subsequent reasoning, which questions and reasoning were each grounded in a false premise concerning that letter. Significantly, in WAIJ, Lee and Moore JJ each conceived that the procedural fairness they described gave rise to the same type of jurisdictional error as that found by the High Court in Dranichnikov . In contrast to WAIJ , Dranichnikov is not expressly mentioned in the reasons of the majority (Madgwick J, Conti J agreeing) in NAJT . However, that part of those reasons in NAJT which upholds the allegation that there had been a jurisdictional error constituted by a failure on the part of the Tribunal to "have regard" to a corroborative letter (147 FCR at 92-93, [212] [213]) is consistent with the error found in Dranichnikov and with the classification by the learned authors of Judicial Review of Administrative Action of that error as a type of procedural fairness error. Further, the letter concerned in that case had not been completely ignored but rather the subject of "fleeting, uncritical references".


case_text: a footnote (p 275, fn 606) in this part of their work the learned authors of Judicial Review of Administrative Action instance SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 ; (2007) 238 ALR 611 ( SZIFI ) as a case which, even though Dranichnikov is not mentioned, offers a good example of the type of procedural fairness error for which they contend Dranichnikov stands. In SZIFI Greenwood J observed (at 614, [43]): [43] Once it is established that the tribunal has asked itself the wrong question by, for example, asking whether it can be satisfied that the appellant faces a real chance of persecution should he return to the People's Republic of China, or has identified the wrong issue, or taken into account, in one part of its deliberations, a notion that the appellant is an Indonesian rather than a Pakistani national, the tribunal is seen to have failed to provide the appellant with procedural fairness and thus jurisdictional error arises ( Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ). The repository of the power is constrained by an obligation to act reasonably by providing procedural fairness. A decision made in light of a failure to act reasonably is not a decision made under the Act for the purposes of s 474.


case_text: was conceded on behalf of the Minister that jurisdictional error could be constituted by the Tribunal's overlooking of a relevant consideration but that to make this out it had to be demonstrated that a whole aspect of a visa applicant's case had been overlooked, not just a particular document. Examples of this were said to be found in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 ( WAIJ ) and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 ( NAJT ). I do not accept that the basis for this type of jurisdictional error is as confined as the Minister has propounded or that regard to the cases cited bears this out. Rather, each of these cases offers but another example of a procedural fairness error on the part of the Tribunal in failing truly to engage with the claim as presented by the visa applicant. That this is so is, in my opinion, starkly evident in the following passage from the joint judgment of Lee and Moore JJ in WAIJ (at 580, [53] [54]): [53] It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant's case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts. [54] It follows that the tribunal did not accord to the appellant practical fairness and justice in the tribunal's conduct of the review. Accordingly, the decision of the tribunal involved jurisdictional error and was not a decision authorised by the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs ... at [24], [32] per Gummow and Callinan JJ. Here, the Tribunal has discounted the letter of 6 March 2007 on the basis of credibility findings concerning the male Appellant but these findings, in turn, are tainted by responses to questions put to the male Appellant at the hearing and subsequent reasoning, which questions and reasoning were each grounded in a false premise concerning that letter. Significantly, in WAIJ, Lee and Moore JJ each conceived that the procedural fairness they described gave rise to the same type of jurisdictional error as that found by the High Court in Dranichnikov . In contrast to WAIJ , Dranichnikov is not expressly mentioned in the reasons of the majority (Madgwick J, Conti J agreeing) in NAJT . However, that part of those reasons in NAJT which upholds the allegation that there had been a jurisdictional error constituted by a failure on the part of the Tribunal to "have regard" to a corroborative letter (147 FCR at 92-93, [212] [213]) is consistent with the error found in Dranichnikov and with the classification by the learned authors of Judicial Review of Administrative Action of that error as a type of procedural fairness error. Further, the letter concerned in that case had not been completely ignored but rather the subject of "fleeting, uncritical references".


case_text: was conceded on behalf of the Minister that jurisdictional error could be constituted by the Tribunal's overlooking of a relevant consideration but that to make this out it had to be demonstrated that a whole aspect of a visa applicant's case had been overlooked, not just a particular document. Examples of this were said to be found in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 ( WAIJ ) and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 ( NAJT ). In contrast to WAIJ , Dranichnikov is not expressly mentioned in the reasons of the majority (Madgwick J, Conti J agreeing) in NAJT . However, that part of those reasons in NAJT which upholds the allegation that there had been a jurisdictional error constituted by a failure on the part of the Tribunal to "have regard" to a corroborative letter (147 FCR at 92-93, [212] [213]) is consistent with the error found in Dranichnikov and with the classification by the learned authors of Judicial Review of Administrative Action of that error as a type of procedural fairness error. Further, the letter concerned in that case had not been completely ignored but rather the subject of "fleeting, uncritical references".


case_text: the Minister, attention was appropriately and necessarily directed to the then pending decision of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 ; (2009) 83 ALJR 1123 ( SZIAI ), judgment in which came to be delivered on 23 September 2009. The outcome in that case served to underscore the correctness of the submission made on behalf of the Minister in the present case, which was that, though the Tribunal was a type of inquisitorial forum, it was not under any general duty to conduct inquiries of its own motion. Given the reasoning and outcome in SZIAI , it is not necessary to refer to the predecessor authorities which the Minister called in aid in support of that submission in the present appeal. It was further submitted for the Minister that, insofar as the male Appellant had invited the Tribunal so to do, it did not follow from this that the Tribunal was bound to take up that invitation, although it was evident that the Tribunal had given the invitation due consideration. I agree that the mere extending by a visa applicant of an invitation to the Tribunal to conduct inquiries itself does not thereby convert a course of action that it would be permissible but not obligatory for the Tribunal to undertake into one which it is bound to undertake. Rather, the singular circumstances of a particular case may, exceptionally, give rise to an obligation on the part of the Tribunal in that case to make its own inquiry with respect to a critical fact. A failure so to do could in such a circumstance give rise to a conclusion that the Tribunal had failed to exercise the review jurisdiction consigned to it and thereby made a jurisdictional error: SZIAI at [25]. In allowing for the possibility of such a jurisdictional error the language employed in the joint judgment in SZIAI counsel's restraint in concluding that it is present, "a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained". In practice, with respect, whether such restraint has been observed by a reviewing court may be controversial for, in cases at the margin, reasonable minds might reasonably differ as to whether a particular inquiry was "obvious". The present may well be a case in point. The Tribunal had before it evidence in the form of the Departmental file notes to which I have referred of the facility with which telephonic inquiries had been able to be made at the fish farm in respect of the male Appellant's employment status in relation to what must have been the routine processing student visa applications. Especially given the nature of the class of visa sought by the Appellants and the impact which it would have on an assessment as to whether the Tribunal was satisfied in the way the Migration Act required for the granting of such a visa, it does not seem to me a transgression of the restraint counselled in SZIAI to hold that the making of a telephonic inquiry of the fish farm as to whether there had been a forfeiture or confiscation of an interest which the male Appellant had at that farm or perhaps just as to why he was no longer employed there was an obvious inquiry about a critical fact. As it happens, there are, for the reasons set out above, other bases upon which it is possible to conclude that the Tribunal's decision was tainted by jurisdictional error. However, this is also, in my opinion, one of those exceptional cases in which it is possible in the circumstances to conclude that the Tribunal constructively failed to exercise the review jurisdiction consigned to it by s 414 of the Migration Act because it failed to make an obvious inquiry about a critical fact. For these reasons, the appeal must be allowed, the orders made by the Federal Magistrates Court set aside and the matter remitted to the Tribunal to hear and determine the review application according to law. For that purpose, the Tribunal should not be constituted by a member who has hitherto heard and determined that review application. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 10 December 2009 Counsel for the Appellants: The Appellants appeared in person Counsel for the Respondents: Ms L Clegg Solicitor for the Respondents: Clayton Utz Lawyers Date of Hearing: 18 and 19 August 2009 Date of Judgment: 11 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1470.html


case_title: Jess v Scott (1986) 12 FCR 187

case_text: In Jess v Scott (1986) 12 FCR 187 at 195 a Full Court discussed the meaning of "special reasons" in O 52 r 15(2) and said that it is: "...an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." 7 In this matter Ms Zegarac has not, in her affidavit accompanying her notice of motion, advanced any persuasive reason why she did not seek to appeal from the judgment of Phipps FM by the time allowed under the rules of Court, or before 28 November 2006. Indeed no reasonable explanation for the delay has been advanced. There was no reason for her to wait for authentication of the order of Phipps FM before appealing. In any event, she had 11 days after her receipt of the orders to apply to appeal or apply to extend the time in which to seek leave to appeal. The delay is not slight but almost a year in circumstances where she has taken other legal steps in the legal dispute between her and Mr Dellios.


case_outcome: followed

case_title: Low v Commonwealth [2001] FCA 702

case_text: In Low v Commonwealth [2001] FCA 702 , the Court declined to extend the time within which to appeal from a judgment of a Federal Magistrate in circumstances where the proposed appeal was bound to fail. 9 Apart from leave not being granted because of the lack of a reasonable explanation of the delay, I am also of the view that the current proposed appeal is bound to fail for the reasons set out below. 10 Phipps FM declined to set aside the bankruptcy notice because he was not satisfied that Ms Zegarac had a counterclaim, set off or cross-demand equal to or exceeding the amount of her judgment debt or a counterclaim that could not have been set up in the action in which the judgment was obtained; see s 40(1)(g) of the Bankruptcy Act . His Honour also refused to grant Ms Zegarac an extension of time in which to comply with the bankruptcy notice under s 41(6)(a). 11 His Honour retraced the history of the controversy which led to the proceeding before him. He noted that Mr Dellios acted for Ms Zegarac in Supreme Court proceedings concerning a property dispute with her de-facto husband. A dispute ensued between Ms Zegarac and Mr Dellios about fees which Mr Dellios alleged to be owing to her. Mr Dellios obtained a judgment against Ms Zegarac in the Magistrates Court of Victoria at Heidelberg. His Honour, Cashmore M heard the matter. During the proceeding, Ms Zegarac applied for leave to file a counterclaim alleging professional negligence against Mr Dellios. Cashmore M refused leave for the counterclaim to issue but during the course of his reasons for judgment, rejected Ms Zegarac's allegation that Mr Dellios had engaged in professional negligence. 12 Phipps FM noted that an appeal from the order of Cashmore M was dismissed by Cummins J in the Supreme Court of Victoria on 28 June 2005. His Honour also referred to Ms Zegarac's commencement of a proceeding in the Magistrates Court of Victoria alleging professional negligence against Mr Dellios. That proceeding also raises allegations of defamatory conduct against him. 13 On 16 April 2006, after publication of the judgment of Phipps FM, Magistrate Smith of the Magistrates Court of Victoria struck out Ms Zegarac's claim in which she made allegations of professional negligence and defamation. By an application dated 26 June 2006 she has applied to set aside the orders of Smith M. That matter is yet to be heard by the Supreme Court. 14 Since the refusal of Phipps FM to set aside the bankruptcy notice, the following relevant events have also occurred: • On 18 May 2006, Mussett R heard the creditor's petition and made a sequestration order. • On 9 June 2006, Ms Zegarac filed an application to review the exercise of power by the Registrar. (The hearing of that review is scheduled for next Friday 15 December 2006). • On 14 July 2006, Ryan J declined to grant a stay of the sequestration order, but noted the undertaking of Mr Dellios to consent to the adjournment of the unresolved Supreme Court proceeding until the hearing and determination of the review. 15 At [14] of his reasons for judgment, Phipps FM said: "This issue is whether Ms Zegarac has a counterclaim set-off or cross-demand equal to or exceeding the amount of the judgment debt which she could not have set up in the proceeding in which it was obtained..." 16 There is no challenge to that aspect of his Honour's reasoning. However, Ms Zegarac contends that his Honour erred in saying that the professional negligence claim was one which was or could have been set up before Cashmore M. There is no basis for that contention. His Honour correctly held that that claim could have been brought before Cashmore M. In fact, Ms Zegarac applied for it to be before him. Although that application was formally refused, he dealt with and rejected her claims of professional negligence in his reasons for judgment. Phipps FM correctly stated at [15] that: "...the important thing [for the purposes of s 40(1)(g)] is that it is a claim which could have been raised." I agree. Importantly, it was not a counterclaim that could not have been set up in the proceeding before Cashmore M. 17 His Honour below, in effect, described the defamation claim as inchoate in the sense that the basis for it has not been set out in Ms Zegarac's claim in the Magistrates Court of Victoria. This is the same claim which Smith M later struck out. Importantly, Phipps FM said at [16] that: "(Ms Zegarac)...does not show any basis for damages as a result of what she alleges in her defamation claim, and that is an essential part of any set-off or counterclaim that is asserted under s 40(1)(g)." I agree with that view. 18 His Honour also held at [17] consistently with his above views that there was no basis for extending the time for compliance with the bankruptcy notice. He dismissed Ms Zegarac's application with costs. 19 Ms Zegarac has not demonstrated any error in his Honour's reasoning in the matter below. I consider the reasoning to be free from doubt such that it would be futile to extend the time within which to allow an appeal to be filed. 20 I will order as follows: 1. Paragraphs 2, 5, 6, 7, 8 and 9 of the respondent debtor's motion of 28 November 2006 is dismissed. 2. The respondent debtor pay the applicant creditor's and trustees' costs of, and associated with the motion. Middleton J previously dealt with paragraphs 1, 3 and 4 of the motion 28 November 2006. Paragraphs 5, 6, 7 and 8 of the motion were either not pressed or rejected at the hearing this morning. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 13 December 2006 Counsel for the Applicant Creditor: Ms F Forsyth Solicitor for the Applicant Creditor: Dellios, West & Co The Respondent Debtor appeared for herself. Counsel for the Trustees: Mr P Agardy Solicitor for the Trustees: Schetzer Brott & Appel Date of Hearing: 13 December 2006 Date of Judgment: 13 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1733.html


case_text: It is well-established that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] per Kenny J. Her Honour observed that there is authority for the proposition that in certain "rare or exceptional circumstances", a failure by the Tribunal to enquire may render the decision manifestly unreasonable in the Wednesbury sense. 26 The seminal authority for the principle that a failure to enquire may, in exceptional circumstances, invalidate a decision is Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Kenny J referred to this in Le at [64].


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437

case_text: However, it seems to me that a failure to "test" the later evidence by questioning the witness cannot be equated with a failure to gather factual material of the kind contemplated by the principle stated in Prasad . This is borne out by the observations of Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 3"> [2003] HCA 60 ; 201 ALR 437 at [57] . 32 Their Honours pointed out in Applicant S154/2002 that the rule in Browne v Dunn has no application to proceedings in an administrative tribunal; the tribunal member conducting an enquiry is not an adversarial cross-examiner, but an inquisitor who is obliged to be fair. In my view it follows that, ordinarily, there can be no duty to use the Tribunal's powers to test one side's assertions as against the other's. 33 This was especially so in the present case where the circumstances relating to the actual marriage ceremony, including the short time the parties had known each other, raised doubts about its genuineness. Moreover, the Tribunal found that Mrs Burton was not a credible witness. 34 There was evidence before the Tribunal that Mr Vikash Burton sponsored his wife's application for a spouse visa and that his wife ultimately became an Australian citizen on 20 March 2007. There was also evidence that Mr Vikash Burton and his wife have a daughter, born in Australia in March 2003. It also appears that they have another child who is also an Australian citizen, although the name and birth date do not appear in the material. 35 The grant of citizenship to Vikash's wife has the result that, at the time of the decision by the Tribunal, her visa was no longer liable to cancellation under s 140(2) of the Act. 36 Accordingly, there was no error in the approach taken by the Tribunal, namely that the appellant's son would be free to lodge a spouse visa application to return to Australia.


case_text: On the other hand there is also authority for the view that the provisions of the Act on which the appellant relied, in particular the power under s 363(3)(a) , to summon persons to give evidence, do not impose any duty on the Tribunal to exercise that power: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (with respect to s 426 of the Act).


case_text: The seminal authority for the principle that a failure to enquire may, in exceptional circumstances, invalidate a decision is Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Kenny J referred to this in Le at [64]. 27 The effect of what Wilcox J said in Prasad at 169-170 is that there may be Wednesbury unreasonableness where it is obvious that there is material that is readily available to the decision-maker that is likely to be of critical importance in relation to a central issue for determination. 28 In my view, this principle does not extend to the present case because all that occurred was that competing versions of the facts were advanced by different parties. 29 It is true that the prior inconsistent statements of the "repudiators" included sworn statutory declarations which were retracted, without any apparent explanation, in unsworn statements and that they were not "tested" in the witness box. 30 Indeed, Mr Burton's statements were apparently not even signed (though the Tribunal's reasons provide conflicting information on this point) and consisted only of two handwritten undated statements received by the Tribunal in May 2003 and July 2003. 31 However, it seems to me that a failure to "test" the later evidence by questioning the witness cannot be equated with a failure to gather factual material of the kind contemplated by the principle stated in Prasad . This is borne out by the observations of Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 3"> [2003] HCA 60 ; 201 ALR 437 at [57] .


case_text: I now turn to the basis upon which the Deputy Commissioner says he is entitled to his costs. The argument is that Mr De Simone's affidavit did not prove the solvency of the company and a winding up order would have been made had the Deputy Commissioner decided not to withdraw his application. In this connection I was told of a practice that has developed by which a company wishing to prove its solvency must produce audited accounts that evidence solvency. The practice is said to flow from the cases referred to by Weinberg J in Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 , a decision that has been cited with approval in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711, a decision of the Court of Appeal of New South Wales.


case_title: Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711


case_text: The explanation to be given to the cases to which Weinberg J referred is this. There are many shaky companies in the marketplace. Applications are made to wind up some of them. Applications are also made to wind up solvent companies. In each case a representative can come along attempting to prove solvency to avoid a winding up. Judges will look with care at the evidence especially if the judge suspects the company is or may be in a weak financial position. Dependant upon the degree of doubt justified by the facts, a judge may say that the only evidence he will treat as probative is "the fullest and best" evidence available - the kind that in Commonwealth Bank of Australia v Begonia (1983) 11 ACSR 609 Hayne J said was often necessary although interesting enough, not in that case. In some instances this may be the company's audited accounts together with verified proof of both the ownership and value of the company's assets. On the other hand there will be many instances where proof of that sort is not required. In such cases there is no good reason to put the company to the time, trouble and expense of producing audited accounts. In the end it will all depend upon each particular fact of a case. 15 Returning to Mr De Simone's affidavit, if the evidence were unchallenged it does make out a prima facie case of solvency. What Mr De Simone said was not the "fullest and best" evidence of the company's financial position. Nor did he produce the audited accounts of the company. But he did explain in some detail the nature of the assets and liabilities of the company. He listed the current assets and liabilities, and provided details of the non-current assets and liabilities. It is apparent that much of the information came from the company's records, although the records were not produced. The thrust of Mr De Simone's evidence was that, after allowing for the debt due to the Deputy Commissioner, the company had surplus assets exceeding $1.4 million, a good proportion of which comprised debts that were due and payable and short-term loans that were either due and payable or payable at short notice. 16 Mr Agardy said that Mr De Simone's evidence would have been subjected to careful scrutiny if the case had gone to trial. No doubt this is true. That only demonstrates that it is impossible to predict what the outcome of the case would have been.


case_text: This matter has a long history. The applicant, Kazimir Kowalski, has been in dispute with Mitsubishi Motors Australia Ltd ("MMAL") from when his employment with that company ceased on 16 March 1994. It is unnecessary for present purposes to outline the very many proceedings he has brought against MMAL and, on occasion, related entities including the present respondent, Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd ("MMA Super") in various Courts and Tribunals in South Australia including in two instances actions in the Federal Court both of which were summarily dismissed: see Kowalski v Mitsubishi Motors Australia Ltd (1998) 88 FCR 55 and Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153 ; affd [2003] FCAFC 18. A history of those proceedings (more than forty in number) is contained in the judgment of Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. In that particular matter he was declared to be a vexatious litigant and has been prohibited from instituting further proceedings against MMAL or a related entity in State courts in South Australia without the leave of the Supreme Court.


case_title: Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153


case_title: Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2003] FCAFC 18


case_title: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154


case_text: I would observe that the relief of punitive damages sought in para (c) above is not tied to any particular cause of action, it apparently being assumed, incorrectly, that all of his claims lead to this end: e.g. for the position under s 82 and s 87 of the TP Act, for example see Nixon v Philip Morris (Australia) Ltd [1999] FCA 1107 ; (1999) 95 FCR 453; for breach of fiduciary duty, see Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298.


case_title: Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298


case_text: As I have indicated, it is only the claim (seemingly for damages) under the TP Act which gives this matter its federal character and this Court jurisdiction over it. MMA Super's contention, though, is that the TP Act claim here was made colourably, i.e. for the improper purpose of fabricating jurisdiction: on colourable claims see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; and see generally Allsop, "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Aust Bar Rev 29 at 41 ff. In aid of this contention MMA Super seeks comfort in the brief observation made by the Court in Kowalski FC (at [22]) to the effect that in that case no claim within jurisdiction could be made against MMA Super "as, for example, under the Trade Practices Act ". 30 The question so raised is not whether a s 52 claim is doomed to failure (I leave out of consideration the question raised by MMA Super as to whether the s 52 could be applicable in any event to a superannuation trustee given s 51AF of the TP Act and the provisions of Pt 2 Div 2 of the Australian Securities and Investments Commission Act 2001 (Cth)). Rather, it is whether the claim was made in good faith. 31 The substance of the present Statement of Claim first saw light of day in the District Court proceedings to which I have referred. Even then and in that forum a claim was made that MMA Super "had breached the Trade Practices Act ". This hardly suggests an invocation of the TP Act to fabricate jurisdiction. I accept he probably initiated proceedings in this Court because of the casual advice he received.


case_text: As to the Full Court's observation in Kowalski FC referred to above, I do not consider than in the circumstances it provides much by way of support to MMA Super. The Court's observation may well be said to provide an indication of the substantial difficulties that may be confronted by an applicant in trying to bring within the scope of s 52 conduct of the type alleged in a trustee-beneficiary relationship. While there are obvious difficulties in the way of demonstrating in a case such as the present that the conduct of MMA Super was in trade of commerce: cf Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; a matter to which I will return below, I am satisfied Mr Kowalski properly and genuinely believed that the TP Act had previously been found to be capable of being applied to a superannuation trustee hence his reliance on State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282, albeit it was a case concerned with Part IV of the Act. 51 As is now well settled, the phrase "in trade or commerce" has a restrictive operation. It does not encompass conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of a trading or commercial business. Rather, the phrase refers only to conduct which is itself one aspect or element of activities or transactions which, of their nature, bear a trading or commercial character: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; Hearn v O'Rourke [2003] FCAFC 78 ; (2003) 129 FCR 64. In Concrete Constructions the allegedly misleading conduct that was relied upon and which resulted in physical injury being sustained, consisted of internal communications made in the course of the ordinary activities of employees of a construction company when constructing a building. This conduct was held not to be in trade or commerce.


case_text: As to the Full Court's observation in Kowalski FC referred to above, I do not consider than in the circumstances it provides much by way of support to MMA Super. The Court's observation may well be said to provide an indication of the substantial difficulties that may be confronted by an applicant in trying to bring within the scope of s 52 conduct of the type alleged in a trustee-beneficiary relationship. While there are obvious difficulties in the way of demonstrating in a case such as the present that the conduct of MMA Super was in trade of commerce: cf Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; a matter to which I will return below, I am satisfied Mr Kowalski properly and genuinely believed that the TP Act had previously been found to be capable of being applied to a superannuation trustee hence his reliance on State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282, albeit it was a case concerned with Part IV of the Act.


case_text: Distinctly, MMA Super submits that, even if not colourable, the TP Act claim ought be characterised as "trivial and insubstantial" and seemingly be disregarded for jurisdictional purposes. Reliance in this is placed on Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) ATPR 41-743 at [46]-[47]; WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111. The description "trivial and unsubstantial" does not in this setting signify that the TP Act claim is unarguable: see e.g. Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; Allsop, at 42. Rather it requires a judgment to be made about the character the claim has as an aspect of the whole of the controversy between the parties: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 609-610.


case_title: WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111


case_title: Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272


case_text: As put the contention of MMA Super is that the TP Act claim discloses no reasonable cause of action. While the same is not said of the allegations of failure by MMA Super to perform its duties, it is said nonetheless that the clear inference is there to be drawn that the proceedings as a whole were issued to avoid the effect of the orders of Justice Bleby and of Mr Kowalski's disagreement with the State Supreme Court over waiver of fees and as such are an abuse of process. It has not been suggested, though, that the trust claims have been determined in another forum on their merits. The contrary was conceded in oral argument, although again some comfort was sought to be derived from what was said by the Court about the trust claims in Kowalski FC . Neither has it been suggested that in the plethora of proceedings brought to date any issue estoppel has arisen. Again it is conceded that, unlike in Lindsey v Philip Morris Ltd [2004] FCA 797 where an abuse of process was found, the present is not a matter in which Mr Kowalski has been attempting to re-litigate despite prior actual decisions on the evidence. 38 I can deal with this contention shortly. While I am satisfied for reasons I give below that the TP Act claim is unarguable, it has not been suggested that the same is the case with the non-TP Act or "trust claims" as I will for convenience call them. At best it is said that the pleading is vague, not particularly revealing and, in the case of the claim against MMA Super to be provided with his entitlement, has been brought against the wrong respondent. 39 If the trust claims had been previously determined on the evidence, there would, in my view, be obvious grounds for the submission that Mr Kowalski was abusing the processes of this Court. Such, though, is not the case. While Mr Kowalski has been declared a vexatious litigant in the State Courts, he has in this Court advanced trust claims which MMA Super has not sought to have dismissed as having no reasonable prospects of success: see Federal Court of Australia Act 1976 , s 31A(2). In these circumstances, unless I am satisfied that the present proceeding is vexatious, I can see no justification for characterising as an abuse of process Mr Kowalski's invocation of the jurisdiction of this Court.


case_text: By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977; Ramsey v Skyring (1999) 164 ALR 378 at 389; Freeman v National Australia Bank Ltd (2006) 230 ALR 213 at 218-219. The purpose of the powers given under the Rules is to reinforce the power of the Court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.


case_title: Ramsey v Skyring (1999) 164 ALR 378


case_title: Freeman v National Australia Bank Ltd (2006) 230 ALR 213


case_title: Jones v Skyring [1992] HCA 39 ; (1992) 66 ALJR 810


case_text: Having regard to Mr Kowalski's proceedings in this Court and it is their character in this Court that is to be objectively judged: Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; (albeit regard may properly be had to proceedings in other courts for the light they might throw on that question of characterisation) it is impossible to conclude that he has habitually, persistently and without any reasonable ground instituted a vexatious proceeding against MMA Super in this Court. 47 In relation to O 21 r 1, I am not satisfied that the first condition required to be made out i.e. Mr Kowalski has instituted a vexatious proceeding in this court is satisfied. I will not repeat what I have said above about the proceeding. 48 I will not make any orders under O 21.


case_text: I will adjourn further consideration of this matter because, as I will indicate below, I intend to dismiss summarily the TP Act claim, but to leave on foot the non-TP Act claims, though I will require that at least the Statement of Claim be amended. It is appropriate to leave the question of security until after that process has occurred bearing in mind in particular that in the present proceedings almost no attention has been given to the question whether the trust claims have any reasonable prospect of success. That question arises as a factor to be considered on a security application: see Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972; and on any possible application made under s 31A of the Federal Court of Australia Act .


case_text: I had deferred consideration of MMA Super's contention that the TP Act claim disclosed no reasonable cause of action, although I have indicated that it ought be summarily dismissed as having no reasonable prospect of success: see Federal Court of Australia Act , s 31A(2). My reasons for this conclusion have been anticipated inferentially in the observations made in Kowalski FC to which I earlier referred. Assuming for present purposes s 52 of the TP Act (and not Pt 2 Div 2 of the ASIC Act) is potentially applicable to MMA Super in the circumstances, the conduct impugned must, to be actionable, have been engaged in, "in trade or commerce". The allegations made relate to whether MMA Super, as trustee at the relevant time of the superannuation fund, has properly discharged (if at all) its obligations to Mr Kowalski as a member of the trust in accordance with the provisions of the trust. Whatever may have been the consequences of that conduct for the purposes of the law of trusts the trust seems to have been of a type relatively similar to that considered in Toohey's Ltd v Commissioner of Stamp Duties (1960) 60 SR (NSW) 539 at 548 it cannot properly be said that conduct itself was "in trade or commerce".


case_title: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594


case_text: As is now well settled, the phrase "in trade or commerce" has a restrictive operation. It does not encompass conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of a trading or commercial business. Rather, the phrase refers only to conduct which is itself one aspect or element of activities or transactions which, of their nature, bear a trading or commercial character: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; Hearn v O'Rourke [2003] FCAFC 78 ; (2003) 129 FCR 64. In Concrete Constructions the allegedly misleading conduct that was relied upon and which resulted in physical injury being sustained, consisted of internal communications made in the course of the ordinary activities of employees of a construction company when constructing a building. This conduct was held not to be in trade or commerce.


case_text: In this matter it can properly be said that MAAL had its own commercial interests and purposes in mind in having a superannuation fund established for its employees that was to be administered by MAA Super. But what it did in constituting the trust was to facilitate the bringing about of the relationship of trustee and beneficiary between MAA Super and the funds members. That relationship was not intrinsically a commercial relationship nor did the conduct complained of otherwise bear a trading or commercial character: cf Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 210 ALR 114 at [52] . This is not to say that, in the management of the fund, MAA Super may not have engaged in conduct that was in trade or commerce as, for example, in the making and management of the trust's investments. The relevant conduct in question here related simply to MAA Super's performance of the obligations it had to Mr Kowalski under the trust. That conduct, in the context of their relationship, was not an aspect of an activity or transaction that bore a trading or commercial character. It related simply to the provision by MAA Super of such entitlements as Mr Kowalski had under the trust instruments by virtue of his membership of the fund to which he had had access in virtue of his employment with MAAL.


case_text: I will order that that part of the proceeding that relates to a claim for relief under the Trade Practices Act 1974 (Cth) be dismissed. I should emphasise that my so doing does not alter the federal character of what remains, my jurisdiction to determine the whole controversy arising when the claims were originally made: see Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 481-2; Allsop, at 41 ff. 54 Finally, let me refer to the trust claims. I have already indicated some of the criticisms that have been made of these and of the relief sought. I will give Mr Kowalski the opportunity to address these also to more clearly and accurately indicate what his claims are and what, in summary, are the material facts on which he relies. The mantra-like repetition of alleged wrongdoing hardly illuminates what it is alleged was actually done or omitted to be done that gave rise to his causes of action. My giving this leave should not be interpreted as suggesting that the trust claims have reasonable prospects of success. That matter has not been agitated before me. I can only say, as Mansfield J suggested in Kowalski TJ , there are obvious obstacles confronting their prosecution. 55 I will order that: (1) the proceeding be dismissed insofar as it claims relief under the provisions of the Trade Practices Act 1974 (Cth); (2) the orders sought in paras 1, 2 and 4 of the notice of motion be dismissed and that the notice of motion otherwise be adjourned to a date to be fixed; (3) the applicant have leave to file and serve an amended application and Statement of Claim on or before Friday, 17 August 2007; and (4) the matter be adjourned for further directions to Monday, 27 August 2007 at 9.00 am. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 24 July 2007 The Applicant appeared in person. Counsel for the Respondent: Mr J White Solicitor for the Respondent: Thomson Playford Date of Hearing: 15 March 2007 Date of Judgment: 24 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1069.html


case_text: As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home ( Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 ; (2004) 138 FCR 70 at [36] ). 9 Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person's residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home ( Hafza at 449-450).


case_text: Again, as a general concept, although most people reside in only one place, residence need not be exclusive; a person may reside in more than one place ( Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 198). For example, an individual who maintains two homes (say, one in Melbourne and one on the Gold Coast) and moves between them according to the seasons may be a resident of both places. 11 Pensions and other benefits under the Social Security Act are, of course, not available to everyone. A recipient of benefits paid for by Australian taxpayers is expected to have a connection with Australia. The necessary connection in the case of pensions and benefits payable under the Social Security Act , generally speaking, involves Australian residence. 12 A person who has reached pension age is qualified for an age pension if he or she satisfies any of the criteria specified in s 43(1) and (1A). As mentioned above, the criterion which the Tribunal found that Mrs Baccon satisfied was that she had '10 years qualifying Australian residence' (s 43(1)(a)).


case_text: As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home ( Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 ; (2004) 138 FCR 70 at [36] ). 15 As s 7(3)(f) reveals, for the purposes of the Act, it is, at the least, a relevant factor in determining whether a person is residing in Australia that he or she intends to remain permanently in Australia. 'Permanently' in this context does not mean forever, and it does not mean without ever leaving Australia whether for business or recreational purposes. It requires the person to have an enduring commitment to Australia as home ( Taslim ). 16 It seems to me that it may be arguable that, in the context of the Act, a person cannot be an Australian resident and the resident of another country at the same time. Alternatively, it may be arguable that, in the context of the Act, a person cannot have been an Australian resident for any continuous period if he or she has, during that period, been a resident of, and resident in, another country. However, the Secretary did not advance either of these arguments and I need not consider their merit. 17 The Secretary submitted that, if a person becomes a resident of a country other than Australia, this is an indication that his or her 'continuous period' of Australian residence may have ended or been interrupted. Subject to the observations in [16], I accept the validity of this submission.


case_text: In order to place the motions in some context it is necessary to recount part of the procedural history of the litigation between Mr Maher and the respondents. A more detailed account of the many encounters between the parties is to be found in the reasons for judgment of North J in Maher v Commonwealth Bank of Australia [2004] FCA 1441 at [2] , [3], [5], [6] and in the reasons of Jessup J: Maher v Commonwealth Bank of Australia [2007] FCA 113 at [2] - [7] , [12]-[14]. It is sufficient for present purposes to record that, on 2 February 2004, and, again on 5 February 2004, Finkelstein J made costs orders against Mr Maher and in favour of certain of the respondents. Mr Maher did not lodge an appeal against Finkelstein J's orders. An application for an extension of time within which to appeal against the orders, made on 5 February 2004 was refused by Heerey J on 11 May 2004. A further attempt, by application dated 18 June 2004, to impugn Finkelstein J's orders was made in the High Court. The application was refused. On 4 November 2004 a Registrar of the Court issued certificates of taxation. They related to orders which had been made by the Court on 26 September 2001 and the orders made by Finkelstein J on 2 and 5 February 2004. On 9 February 2005 a Registrar entered an order requiring Mr Maher to pay the costs identified in the two certificates to the first, second and third respondents.


case_title: Maher v Commonwealth Bank of Australia [2007] FCA 113


case_text: The Federal Magistrate did not accept that the Tribunal failed to make findings in relation to the financial aspects of the relationship and the nature of the household. His Honour accepted that the Tribunal did have regard to those matters as required by Regulation 1.15A(3)(a) and (b) and that the Tribunal had considered the major issues raised and evidence adduced on behalf of the appellant. Further, the Federal Magistrate found that the Tribunal was not precluded from having regard to events which occurred subsequent to the date of the visa application. He relied on Bretag v Immigration Review Tribunal (unreported, Federal Court of Australia, O'Loughlin J, 29 November 1991) as authority for this point. His Honour held that "[i]t is ultimately a matter for the Tribunal to make an assessment of the facts and it is entitled to express that assessment in what might be otherwise regarded as somewhat pejorative terms" such as there being "little evidence" to support a claim. 18 His Honour found that there was no jurisdictional error arising from the weight that the Tribunal gave the evidence when it considered "the voluminous material relied upon by the Applicant" in relation to the social aspects of the relationship. The Federal Magistrate found "no error in the manner in which the Tribunal approached its task having regard to the obligation set out in [Regulation 1.15A3(c)]." 19 The Federal Magistrate noted that the determination of the nature of persons' commitment to each other was "no doubt a very difficult issue for Tribunals to assess." His Honour accepted that the Tribunal was entitled to take into account "the absence of evidence of living arrangements and specifically those arrangements which might reveal whether the parties shared a bedroom or ... had lived together "as husband and wife". The Federal Magistrate found that it "was a matter entirely for the Tribunal to make a finding of this manner." His Honour confirmed his earlier view that "in considering circumstances at the time of the application the Tribunal as a matter of law is entitled to consider and as a matter of logic in many cases compelled to consider subsequent events and circumstances when making an assessment of" the nature of the persons' commitment to each other. (Emphasis added). 20 The Federal Magistrate noted that, although the findings in relation to this criterion were brief, he accepted that those findings "were made after a fairly detailed assessment of the matters referred to by the Respondent pursuant to the various sub-regulations". The Federal Magistrate noted that there appeared to be a lack of corroboration of the assertion by the appellant that the parties did live together as husband and wife and again that it was "a matter entirely for the Tribunal to make an assessment of evidence of this kind which it has done in a manner free of error." 21 The Tribunal found that the nominator did not have a commitment to a shared life with the appellant to the exclusion of all others at the time of the application. This finding was partly based on the nominator's statements to the Department, which were unable to be tested, as the nominator had not deposed to the statements and did not appear as a witness. The Federal Magistrate accepted, as a matter of law, that the evidence before the Tribunal could include material that was not the subject of evidence on oath. His Honour held that there was "no principle of law which requires the Tribunal to prefer evidence on oath over and above other evidence although normally one might expect evidence on oath which may be tested to have a higher value." In the Federal Magistrate's view, the Tribunal was entitled to take into account all the evidence before it and the findings made by the Tribunal were reasonably open to it on the evidence before it. 22 The Federal Magistrate found that the Tribunal's findings in relation to the failure of the applicant to provide evidence in support, by the nominator's family, of the relationship, were made free of error. His Honour found that this evidence was relevant, and that, in having regard to it, the Tribunal did not make a jurisdictional error. 23 The Federal Magistrate found that the Tribunal had complied with the requirements of s 359A of the Act: the Tribunal had explained "in clear terms" the relevance of the information; the information was properly relevant to the obligation under s 359A of the Act; "the information was a reasonable part of the reason for the Tribunal's decision"; and the information did not fall within any of the exceptions under s 359A(4) of the Act. 24 As each of the grounds for judicial review failed, the appellant's application was dismissed. 25 The notice of appeal to this Court was filed on 12 February 2008. The grounds relied on in the appeal are substantially the same as those relied on before the Federal Magistrate. They are that: 1. The Federal Magistrate erred in finding that the Tribunal had made findings in relation to "financial aspects of the relationship" and "the nature of the household" (see Grounds 3 and 4 of the application to the Federal Magistrates Court). 2. The Federal Magistrate erred in finding that no jurisdictional error arose from the weight the Tribunal had afforded the evidence in relation to the social aspects of the relationship. Further, the Federal Magistrate erred in failing to consider the appellant's case that there was no evidence to support the Tribunal's finding on this issue and that the finding was based on conjecture (see Ground 5 of the application to the Federal Magistrates Court). 3. The Federal Magistrate erred in finding that the Tribunal was not in error in having regard to the absence of evidence and subsequent events in relation to the nature of the appellant's and the nominator's commitment to each other. Further, the Federal Magistrate erred in failing to consider the appellant's case that: a) there was sufficient evidence, at the time the appellant's application was made, of the appellant's and the nominator's commitment to each other, for the purposes of regulation 1.15A(d) of the Regulation; and b) the Tribunal's findings in relation to this issue were made in the absence of evidence (see Ground 6 of the application to the Federal Magistrates Court). 4. The Federal Magistrate erred in failing to address the appellant's application ground that the Tribunal failed to consider the evidence when it made its finding concerning whether and, if so, the length of time during which the appellant and the nominator lived together (see Ground 7 of the application to the Federal Magistrates Court). 5. The Federal Magistrate erred in failing to address the appellant's application ground that, in relation to its findings concerning the appellant's and the nominator's mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal failed to consider the appellant's evidence, engaged in speculation and gave significant weight to evidence that post dated the appellant's application (see Ground 8 of the application to the Federal Magistrates Court). 6. The Federal Magistrate erred in failing to respond to the appellant's ground that there was no evidence to support the Tribunal's findings and the Tribunal relied on irrelevant material (see Ground 9 of the application to the Federal Magistrates Court). 7. The findings of the Federal Magistrate in relation to the appellant's ground that the s 359A letter did not respond to the appellant's grounds of appeal in relation to that issue (see Grounds 1 and 2 of the application to the Federal Magistrates Court). 8. The Federal Magistrate erred in stating that the "great deal" of references to the transcript of Tribunal hearing had been made in an attempt to encourage the Federal Magistrates Court to revisit the merits of the application. 26 Under this ground the appellant complains that the Federal Magistrate had been in error in finding that the Tribunal had, in fact, made findings in relation to the financial aspects of the relationship between the appellant and the nominator and on the nature of their household. In its reasons the Tribunal had dealt with these two issues under discrete headings. In dealing with the financial aspects of the relationship it had referred to evidence about the financial positions of the appellant and the nominator, the existence of a joint account, the way in which household expenses were paid and the receipt, by the nominator, of money from her mother. The Tribunal found that there was little evidence that the parties had combined their financial affairs at the time at which the appellant had applied for the spouse visa. It noted that the nominator had continued to receive financial support from her family for her own use. The evidence relating to the nature of the household was sparse. The Tribunal noted that the flat in which the appellant and the nominator lived after they had left the nominator's parents home had two bedrooms and that the appellant claimed that he had done the housework. No findings in terms were made. 27 The argument advanced by counsel for the appellant at the hearing differed from that suggested in the notice of appeal. As argued, the appellant's complaint was not that no findings were made but rather that, in dealing with these two matters, the Tribunal had directed its attention to financial and domestic arrangements between the appellant and the nominator in the weeks and months after the appellant's application had been made. 28 The Tribunal's reasons clearly state that it was directing its attention to the arrangements between the appellant and the nominator at the time 29 March 1999 when the visa application was made. At that time the appellant and the nominator were living with the nominator's parents. At that time any joint financial dealings were at an embryonic stage. There was no joint household. The Tribunal looked to subsequent events in an effort to make a judgment about what the relevant arrangements were at the end of March 1999. This it was entitled to do: see Bretag v Immigration Review Tribunal (unreported Federal Court of Australia, O'Loughlin J, 29 November 1991). It was a matter for the Tribunal to determine the weight to be accorded to the limited evidence which was presented to it. 29 The Tribunal dealt with the social aspects of the relationship between the appellant and the nominator in another, discrete, part of its reasons. It noted that they had been married in a traditional religious ceremony. It took into account the evidence of friends of the appellant as to their observations about the relationship between the couple and their friends. The Tribunal, however, noted the absence of any evidence from the nominator or her family to support the visa application or the review application. It therefore observed that there was "limited evidence of support for the relationship from family and friends who attended the wedding." 30 There can be no doubt that the Tribunal took into account the social aspects of the relationship between the appellant and the nominator. The weight it gave to the evidence was a matter for it.


case_text: The appellant's written submissions appeared to have accepted that a distinction was to be drawn, for the purposes of s 359A, between information considered by the Tribunal and the thought processes of the Tribunal which were founded on that information. Reference was made to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at [24] and SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] . Despite this acknowledgment the appellant contended: "... that inconsistencies cannot remain inconsistencies. It is to be brought within the scope of information and this can only be achieved if the Tribunal gives particulars of these inconsistencies and explains its relevance which may well differ from Tribunal member to Tribunal member." 43 The authorities referred to by the appellant do not support the proposition that the Tribunal is required to particularise any inconsistencies which it discerns when considering the evidence before it and to incorporate such particulars in any notice given under s 359A of the Act. In SZBYR the joint judgment (at [18]) said that: "... However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself." (Emphasis added). The distinction between "information" and inconsistencies emerging from such information was referred to by Siopis J in SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260. His Honour said: "[20] I understood the appellant's submission to complain that he had not been given an opportunity to comment in writing upon what he regarded as findings of inconsistencies in his evidence, in the two respects identified; which he said was "information" to which s 424A(1) applied because it was the reason, or part of the reason, for the Tribunal affirming the decision under review. [21] In my view, the appellant's submission is not to be accepted. The reason why the Tribunal affirmed the decision was that it disbelieved the appellant's evidence because of the implausibility of that evidence, rather than as the appellant characterised it, the "inconsistencies" in his evidence. But whether the appellant's evidence was disbelieved due to its "implausibility" or "inconsistency" is naught to the point, because it is accepted that a finding that evidence is disbelieved on the grounds of implausibility or inconsistency as part of the subjective appraisal made by the Tribunal which does not comprise "information" for the purpose of s 424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR at 616, at [18])..." The appellant was unable to point to any decision which had held that it was necessary for inconsistencies to be particularised in notices given under s 359A or 424A of the Act.


case_text: The submissions concluded by referring to some words of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 where his Honour, in dealing with s 424A of the Act, said (at [206]) that: "Also, the fact that appraisal, thought processes and determination are not information does not mean that they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c)." The appellant contended that "[i]f such a duty is cast on the Tribunal in respect of information, it cannot be said that no similar duty is cast on the Tribunal in respect of inconsistencies."


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


case_text: The authorities referred to by the appellant do not support the proposition that the Tribunal is required to particularise any inconsistencies which it discerns when considering the evidence before it and to incorporate such particulars in any notice given under s 359A of the Act. In SZBYR the joint judgment (at [18]) said that: "... However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself." (Emphasis added). The distinction between "information" and inconsistencies emerging from such information was referred to by Siopis J in SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260. His Honour said: "[20] I understood the appellant's submission to complain that he had not been given an opportunity to comment in writing upon what he regarded as findings of inconsistencies in his evidence, in the two respects identified; which he said was "information" to which s 424A(1) applied because it was the reason, or part of the reason, for the Tribunal affirming the decision under review. [21] In my view, the appellant's submission is not to be accepted. The reason why the Tribunal affirmed the decision was that it disbelieved the appellant's evidence because of the implausibility of that evidence, rather than as the appellant characterised it, the "inconsistencies" in his evidence. But whether the appellant's evidence was disbelieved due to its "implausibility" or "inconsistency" is naught to the point, because it is accepted that a finding that evidence is disbelieved on the grounds of implausibility or inconsistency as part of the subjective appraisal made by the Tribunal which does not comprise "information" for the purpose of s 424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR at 616, at [18])..." The appellant was unable to point to any decision which had held that it was necessary for inconsistencies to be particularised in notices given under s 359A or 424A of the Act.


case_outcome: affirmed

case_text: 31 March 2008, the applicant applied to the Administrative Appeals Tribunal ( the Tribunal ) for a review of the delegate's decision. The Tribunal held a hearing on 31 October 2008. On 22 January 2009, the Tribunal affirmed the delegate's decision. At the same time, the Tribunal delivered reasons in support of its decision ( Re Mingchi Lin v Minister for Immigration and Citizenship (2009) 106 ALD 211, [2009] AATA 44 ( the Tribunal's reasons )). The proceedings in this Court are brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ( the AAT Act ). The applicant has raised four questions of law for this Court's consideration. These questions are set out below under the heading The Questions of Law and the Grounds of Appeal . This Court has wide powers when hearing and determining an appeal under s 44 of the AAT Act. The Court may make such order as it thinks appropriate by reason of its decision (s 44(4)). The Court may make findings of fact (s 44(7)) and may affirm or set aside the Tribunal's decision and remit the case to be heard and decided again in accordance with the directions of the Court (s 44(5)).


case_text: Mason CJ said in Commissioner of State Revenue (Vic) v Royal Insurance Australia Limited [1994] HCA 61 ; (1994) 182 CLR 51 at 64: But, as the Court went on to point out in Ward v Williams , the question whether a public officer, to whom a power is given by facultative words, is bound to exercise that power upon any particular occasion, or in any particular manner, is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power (see Ward v Williams [1955] HCA 4 ; (1955) 92 CLR 496 at 505).


case_text: Court has to adopt a practical approach when considering whether or not relief should be granted as a result of its determination of questions of law pursuant to s 44 of the AAT Act. In the present case, the approach taken by the Tribunal in grouping together shorter periods of time into calendar years or, as was the case in 2006 and 2007, into an 18 month period, did not distort or place a different complexion upon those matters which were advanced by the applicant as supporting his subs (4) claims. In my view, had the approach which I have held is the correct approach strictly been taken in the present case the ultimate conclusions reached by the Tribunal in respect of the applicant's subs (4) claims would not have been any different. Further, the only questions of law raised by the applicant are those which I have extracted at [24] above. The applicant did not raise any question or issue concerning the way in which the Tribunal approached the delineation of the periods which it considered might receive subs (4) treatment. To send the matter back to the Tribunal in those circumstances would be futile. The Court will not take that course if to do so would be futile (see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 562; and Commissioner of Taxation v Eskandari [2004] FCA 8 ; (2004) 134 FCR 569 at [50] [54) (pp 583 584).