case_text: A native title determination application may only be made in accordance with the Act ( Commonwealth v Clifton (2007) 164 FCR 355 at [40] [57]) and in accordance with the procedures set out in the Act. As the Full Court noted in Clifton , stringent requirements are placed upon an applicant seeking a determination of native title. If I am not satisfied that native title does not exist, the application should be dismissed. 44 The Act does not provide for a procedure that enables a respondent to obtain a determination of native title which that party could not obtain as an applicant. The Act requires a native title claimant application to be authorised by the relevant native title claim group ( Clifton at [48]). Worimi has failed to maintain his filed claimant applications as they were not authorised by his asserted claim group, as described in each claimant application. 45 The beneficial nature of the Act does not mean that a different standard applies to the evidentiary burden and the onus of proof. Worimi has not advanced sufficient reason why the Land Council's application should not be determined on the civil standard of the balance of probabilities. In any event, Worimi appears to have accepted that the applicable standard of proof is the balance of probabilities. 46 In the absence of a claimant application following the giving of notice of the making of the non-claimant application in respect of the Land, the Court is entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the Land ( Clifton at [59]). At the very least, this supports an inference of an absence of native title over the Land, subject to the matters to be raised by Worimi. 47 It does not follow that the absence of a native title claim means that, without more, there is a declaration of no native title. As was recognised in the joinder of Worimi to these proceedings, Worimi's assertion of native title rights and interests may lead to a more informed decision in the non-claimant application ( Worimi 2007 at [30]). Worimi may not be able to establish that native title does exist but his evidence, if accepted, may cast doubt on the Land Council's case ( Worimi 2007 at [36]). 48 It does not follow, as Worimi has previously asserted, that his inability to secure a positive native title determination means that there is no evidentiary burden on him to support his contention that there is native title. As in other proceedings, in proceedings seeking a judgment in rem that no native title exists and in proceedings arising under beneficial legislation, the Court will assess the whole of the evidence. 88 In relation to the non-claimant application for a determination that no native title exists over the Land, the following seems to me to apply: • The Act permits the making of non-claimant applications for determinations that no native title exists over land. • This allows people with interests in land to ascertain whether native title exists. The Act envisages that determinations of the absence of native title may be made and provides a statutory guarantee of validity to future acts (s 24FA). Section 61(1) provides for non-claimant applications for native title determinations. There is no indication in the Act that there is a presumption that native title exists that must be displaced by an applicant seeking a determination of the absence of native title. • The Minister has not abandoned his right to participate in these proceedings. The Minister has an interest in these proceedings, namely, to ensure that if the Court is not satisfied that there is no native title over the Land, that the Court does not make findings in relation to matters which would need to be addressed in making a positive determination of native title. The Minister also has an interest in knowing whether or not, and in what way, the Crown's radical title is burdened by native title rights and interests. In any event, the Act does not require the Minister to establish an interest in order to be party to these proceedings. • These proceedings do not enable Worimi to obtain a declaration that native title exists. In order to establish that native title exists, it is necessary to make an application under the Act and to comply with the Act and the requirements for the establishment of native title ( Kokatha ; Clifton ; Worimi 2007 ). • An applicant for a determination of the absence of native title has an onus to establish that there is no native title over the land. That onus applies to a civil standard. The applicant must demonstrate on the balance of probabilities that native title does not exist. • There is no indication in the NSW Act or the Act to indicate that the standard to be applied is other than the ordinary civil standard. • A respondent to the application may adduce evidence to cast doubt on the applicant's case. As I said in Worimi 2007 at [35], Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Worimi's assertion of his native title rights and interests may lead to a more informed decision in the non-claimant application ( Worimi 2007 at [30]). • The decision is based upon the whole of the evidence before the Court including evidence adduced by Worimi. • The evidence adduced by Worimi should be assessed to determine whether it is sufficient to cast doubt on the Land Council's case such that the Land Council does not satisfy the Court that, on the balance of probabilities, no native title exists over the Land. • Accordingly, the onus is not on the Land Council to satisfy the Court as to the absence of each element required to prove the existence of native title. The Land Council is not required positively to establish the situation pre-sovereignty and from sovereignty to the present time with expert evidence of laws and customs. It is contrary to logic to say that a person who wishes to establish that there is no native title must first positively prove that there were laws and customs at any stage. • Worimi is the person who asserts the existence of native title. That necessarily means native title under the Act. The evidence must address the elements of such a claim, in particular the laws and customs and rights and interests from pre-sovereignty or the time of sovereignty to the present. It is not necessary to prove each element of native title but the evidence should be sufficiently cogent with respect to those elements it does address to cast doubt on the assertion that native title does not exist. If the evidence establishes the absence of a necessary element of native title, such as continuous connection with the Land, this would provide support for a determination of the absence of native title. • The Land Council may call evidence as to the existence or non-existence of laws and customs at each of those stages and as to the existence of a class or persons claiming the communal, group or individual rights. The Land Council may establish that only one necessary element is missing, such as continuous connection. That would be sufficient to establish an absence of native title. • The subject matter of this application is the land constituted by a single lot, Lot 576. Worimi contends that it is impossible to deal with Lot 576 without also considering the surrounding land. The Land Council has no obligation to demonstrate an absence of native title throughout the Port Stephens area. The evidence needs to concern the Land. However, evidence that relates to an area that goes beyond a recently subdivided lot is likely to be relevant. The question remains, however, whether there are native title rights and interests over Lot 576. • It is not in dispute that all formal requirements for a non-claimant application for a determination of the absence of native title have been met. In the absence of any evidence as to the existence of native title over the Land, the Land Council would be entitled to the determination it seeks. Both the Land Council and Worimi have adduced evidence addressing the existence of native title. It is necessary to consider the whole of that evidence to ascertain whether the Land Council has established, on the balance of probabilities, that there is no native title or whether sufficient doubt has been cast on the Land Council's case.


case_outcome: referred to

case_text: The Minister submits that a party seeking to resist the making of the orders sought in a non-claimant application must adduce or identify at least some credible evidence addressing the following matters as identified in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 , De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 and De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290: a that at the time of sovereignty there was "a body of persons united in and by its acknowledgement and observance of a body of laws and customs" (the "pre-sovereignty society"); b the nature and content of a normative body of laws and customs (the "traditional laws and customs") pursuant to which rights and interests were held at the time of sovereignty; c the nature and content of the rights and interests held at the time of sovereignty pursuant to the traditional laws and customs (the "traditional rights and interests"); d that the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time; e that the traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and that such acknowledgement and observance has continued substantially uninterrupted since sovereignty; f that since sovereignty the pre-sovereignty society and their successors have maintained a connection with the application area and have transmitted rights and interests in relation to the application area by and in accordance with the traditional laws and customs; g that they, the native title claim group (as a whole), acknowledge and observe the traditional laws and customs; h the nature and content of the traditional laws and customs observed by members of the native title claim group; i that, by the traditional laws and customs that are still observed by them, the native title claim group has a connection with the application area; j that, by the traditional laws and customs that are still observed by them, the native title claim group has rights and interests in the application area; k the nature and extent of the extant rights and interests; and, l that such rights and interests have not been extinguished, (or if extinguishment has occurred, it is to be disregarded); and are not "antithetical to the fundamental tenets of the common law".


case_title: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290


case_outcome: considered

case_title: Derschaw v Sutton (1996) 17 WAR 419

case_text: Derschaw v Sutton (1996) 17 WAR 419 was a case of defensive native title to a criminal prosecution. That is, the defendants sought to establish the existence of native title as a defence. Justice Franklyn (with whom Murray J agreed) held at 431 that the defendants had to adduce or direct the Court's attention to evidence of each of the material matters necessary to establish the existence of native title. Despite Worimi's submission that the case has no precedent value, it should, as a decision of the Full Court of the Supreme Court of Western Australia, be followed unless it is plainly wrong ( Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]). Similar reasoning has been followed in other cases (see, for example, Mason v Tritton (1994) 34 NSWLR 572; Dillon v Davies (1998) 156 ALR 142 ; Lewis v Wanganeen [2005] SASC 36). Special leave to appeal Derschaw to the High Court was refused. In my respectful opinion, it is not plainly wrong. Justice Franklyn , drawing from Mabo v The State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 , pointed out that, in the absence of evidence going to each element of native title, there is insufficient foundation for the claim to have legal justification. I agree, with respect, with that analysis. To establish the existence of native title under the Act, the same elements of native title apply whether native title is asserted by an applicant or by a respondent.


case_text: Worimi points to Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374 where it was accepted that at the time of sovereignty, the lands were inhabited by organised communities of Aboriginal people who had rights and interests in the subject lands, sourced in traditional laws and customs (at [34]). The parties accepted the ' tenacious persistence of native title ' and of traditional Aboriginal culture. Justice Madgwick took account of extensive expert reports of anthropologists and historians, as well as other evidence that had been filed, to conclude that there was no native title over the lands in question. That expert evidence was available in Gale . The fact that no such evidence is available in these proceedings does not prevent a decision being reached as to whether the Land Council has satisfied the burden of establishing the absence of native title, on the basis of the evidence adduced. 75 The Land Council is not required to overcome and negative a presumption that native title exists over Lot 576. 76 Worimi points to the description of all of the land around Port Stephens as "traditional Worimi country" or in similar terms. The Minister accepts that ' it is common ground that the Land falls within traditional Worimi country '. However, the Minister does not agree that the use of such an expression or such informal identification of a region with a people, the Worimi nation, entails acceptance that there is and has at all times since 1788 been a native title holding group that is part of a society which has all the attributes that are necessary to sustain native title rights and interests in the Land under the Act. 153 Worimi says that his family and his mother before him were removed by actions of others and that the removal was not voluntary. In an area where non-Aboriginal communities developed, many Aboriginal families lived at Karuah, which is also part of Worimi land. In deciding whether claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with land, some interruptions to enjoyment of native title rights and interests is allowed ( Gale at [108], citing Yorta Yorta and De Rose ). 165 In Gale, Madgwick J was dealing with a native title claimant application from which the claimants withdrew. One of the respondents, Deerubbin Local Aboriginal Land Council, sought an order that there was no native title over the subject land. Expert evidence had been filed in support of the claimant applications to which the Deerubbin Local Aboriginal Land Council had responded. His Honour considered Yorta Yorta and drew from it a number of relevant principles, including: • [N] ative title rights and interests derive from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia: Yorta Yorta at [75]. • The rights and interests must be presently 'possessed' under traditional laws and customs. This requires that the normative system under which those rights or interests are possessed ... be a system that has had a 'continuous existence and vitality' since sovereignty: Yorta Yorta at [47]. • Some change to or adaptation of traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests since sovereignty will not necessarily be fatal to a native title claim. • The statutory questions (in s 223) are directed to the present possession of the rights or interests, not their exercise, and to the existence of a relevant, present connection. It follows that the non-exercise of native title rights or interests by some of the persons now claiming such rights or interests ... will not inevitably be fatal. • The requirement in s 223(1)(b) for connection with land or waters by traditional laws and customs must be a connection which the peoples concerned have by their traditional laws and customs, that is the laws and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty. It is the normative quality of the normative rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which are now identified as native title. • It is an important qualification that the acknowledgment and observance of those rules need only have continued substantially, and not entirely, uninterrupted. • Nonetheless, it is necessary to demonstrate that it is the normative system of the pre-sovereign society out of which the claimed rights and interests arise. This entails that it be shown that that society has continued to exist as a body united by its acknowledgement and observance of the traditional laws and customs. • Acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. It is not enough that there be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe them, notwithstanding that they are similar to or even identical with those of an earlier and different society. 166 Justice Madgwick concluded at [18] that there is a stringent requirement of continuity both of the society which had the rules giving rise to native title rights and interests and of observance of those traditional laws and customs which embodied those rules. At [118], Madgwick J found that, on the available evidence, the claimants did not constitute, even as the last member, ' a society that in any presently relevant sense observes traditional laws and customs '. Aboriginality by descent and/or self-identification and acceptance as such is not enough to found a native title claim. It was not shown that there was ' a society that has continued to exist since before sovereignty and which was and is united by its acknowledgement of traditional laws and observance of traditional customs, allowing that the laws and customs may have adapted '. Those laws and customs were not shown to have had a "continuous existence and vitality" since sovereignty. Justice Madgwick concluded that there was no adequate reason not to make a determination that native title did not exist in relation to the subject land. 168 Worimi asserts laws and customs in connection with the Land which, he acknowledges, are not observed by other Worimi people. That is consistent with the evidence of the other witnesses. As in Gale , Worimi and those of his family who support his claims do not constitute a society that observes traditional laws and customs in respect of the Land. As in Gale , even if the Land was associated with the birth of children of the Garuahgal people, the present observance by Worimi and one of his daughters is ' at best an attempted re-creation of a society which may well have had native title rights and interests ' (at [119]).


case_text: I have recorded the history of this matter in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357 (' Worimi 2007 '). That history includes the striking out of two claimant applications filed by the third respondent, Mr Gary Dates, who prefers to be called Worimi. I will refer to him as Worimi. Each application was struck out pursuant to s 84C of the Act for failure to comply with s 61 ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770 (' Worimi 2006 ')). Worimi did not give notice within the notification period that he wanted to be a party to the non-claimant application. On 30 March 2007, Worimi filed an amended notice of motion to be joined as a party to the non-claimant application pursuant to s 84(5) of the Act. For the reasons set out in Worimi 2007 , I made an order that he be joined as a respondent to these proceedings.


case_title: Ho v Powell (2001) 51 NSWLR 572

case_text: The power of a party to adduce evidence may be relevant to the weight to be accorded to the evidence presented ( Apollo Shower Screens at 565; Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65; Ho v Powell (2001) 51 NSWLR 572 at [15]). It may also be relevant to the standard of proof. There is, however, a distinction between the probabilities on limited material available and whether limited material provides an appropriate basis on which to reach a reasonable decision ( Ho at [14]).


case_text: Worimi says that, because the Land Council asserts that native title does not exist, it is required to prove the absence of each of the elements necessary to establish native title under the Act. On 19 December 2007, after Worimi had been joined and a hearing date allocated, I directed the filing of Statements of Contentions by the Land Council and by Worimi, better to understand the case being made by each of these parties. While the document that the parties were directed to file was called a Statement of Contentions, it was clearly not a pleading in the sense used in Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150. In that case, the "Points of Claim" filed by the applicant was considered to define the nature of the applicant's claim. 33 Worimi says that the material facts in respect of each of the facts and contentions and in respect of each of the elements necessary to establish native title have not been articulated in the Land Council's Statement of Facts and Contentions. He treats them as equivalent to pleadings. They are not and were not intended by me to be so, nor were they understood by the Land Council as such. 34 Submissions have been made concerning what has been called ' the evidential onus ' of proof. The Land Council contends that, on establishing the matters necessary to demonstrate that the appropriate notification procedures have occurred and in the absence of a claimant application, the Court should infer that no native title exists over the Land and ' the evidential onus ' shifts to Worimi. The Land Council and the Minister both say that Worimi has ' an onus ' regarding his assertion that native title exists over the Land.


case_text: Worimi asserts that he and his immediate family may be the only Worimi people who were given native title rights and interests in the Land and, he adds, in the area from Birubi Beach to Boat Harbour, under traditional laws and customs. It follows that Worimi has the means of bringing forward evidence to establish the existence of the native title rights and interests he asserts. It is not for the Court to conduct a roving enquiry as to whether anybody, and if so who, might hold native title over the Land ( Jango v Northern Territory (2007) 159 FCR 531 (' Jango ') at [84]). In considering the evidence adduced by Worimi, it is relevant that he is the person who is able to adduce evidence of the laws and customs that he asserts he and his family practise and observe. On the other hand, he has insufficient resources to present the expert historical and anthropological evidence to substantiate his claims.


case_text: The onus of proof is on the Land Council, which must satisfy the legal burden on the balance of probabilities, but there is no reason to conclude that if the Land Council establishes a prima facie case of no native title, there is no onus on Worimi to adduce any evidence in support of his assertion of native title. In dealing with the defensive use of native title in Kokatha People v State of South Australia [2007] FCA 1057 , Finn J observed at [52] that a non-applicant native title claimant who is unable to obtain authorisation to make a s 61 claim stands in no different position than any person who claims native title but is unable to institute proceedings to have that claim established. 52 If the elements of native title are established by a non-applicant claimant, it can prevent a determination that native title does not exist, although it cannot secure a positive determination of native title under s 225 of the Act ( Kokatha at [50] per Finn J). However, Worimi's evidence may be sufficient to raise a doubt as to the non-existence of native title without amounting to proof necessary for a claimant application or for a finding that native title exists. 88 In relation to the non-claimant application for a determination that no native title exists over the Land, the following seems to me to apply: • The Act permits the making of non-claimant applications for determinations that no native title exists over land. • This allows people with interests in land to ascertain whether native title exists. The Act envisages that determinations of the absence of native title may be made and provides a statutory guarantee of validity to future acts (s 24FA). Section 61(1) provides for non-claimant applications for native title determinations. There is no indication in the Act that there is a presumption that native title exists that must be displaced by an applicant seeking a determination of the absence of native title. • The Minister has not abandoned his right to participate in these proceedings. The Minister has an interest in these proceedings, namely, to ensure that if the Court is not satisfied that there is no native title over the Land, that the Court does not make findings in relation to matters which would need to be addressed in making a positive determination of native title. The Minister also has an interest in knowing whether or not, and in what way, the Crown's radical title is burdened by native title rights and interests. In any event, the Act does not require the Minister to establish an interest in order to be party to these proceedings. • These proceedings do not enable Worimi to obtain a declaration that native title exists. In order to establish that native title exists, it is necessary to make an application under the Act and to comply with the Act and the requirements for the establishment of native title ( Kokatha ; Clifton ; Worimi 2007 ). • An applicant for a determination of the absence of native title has an onus to establish that there is no native title over the land. That onus applies to a civil standard. The applicant must demonstrate on the balance of probabilities that native title does not exist. • There is no indication in the NSW Act or the Act to indicate that the standard to be applied is other than the ordinary civil standard. • A respondent to the application may adduce evidence to cast doubt on the applicant's case. As I said in Worimi 2007 at [35], Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Worimi's assertion of his native title rights and interests may lead to a more informed decision in the non-claimant application ( Worimi 2007 at [30]). • The decision is based upon the whole of the evidence before the Court including evidence adduced by Worimi. • The evidence adduced by Worimi should be assessed to determine whether it is sufficient to cast doubt on the Land Council's case such that the Land Council does not satisfy the Court that, on the balance of probabilities, no native title exists over the Land. • Accordingly, the onus is not on the Land Council to satisfy the Court as to the absence of each element required to prove the existence of native title. The Land Council is not required positively to establish the situation pre-sovereignty and from sovereignty to the present time with expert evidence of laws and customs. It is contrary to logic to say that a person who wishes to establish that there is no native title must first positively prove that there were laws and customs at any stage. • Worimi is the person who asserts the existence of native title. That necessarily means native title under the Act. The evidence must address the elements of such a claim, in particular the laws and customs and rights and interests from pre-sovereignty or the time of sovereignty to the present. It is not necessary to prove each element of native title but the evidence should be sufficiently cogent with respect to those elements it does address to cast doubt on the assertion that native title does not exist. If the evidence establishes the absence of a necessary element of native title, such as continuous connection with the Land, this would provide support for a determination of the absence of native title. • The Land Council may call evidence as to the existence or non-existence of laws and customs at each of those stages and as to the existence of a class or persons claiming the communal, group or individual rights. The Land Council may establish that only one necessary element is missing, such as continuous connection. That would be sufficient to establish an absence of native title. • The subject matter of this application is the land constituted by a single lot, Lot 576. Worimi contends that it is impossible to deal with Lot 576 without also considering the surrounding land. The Land Council has no obligation to demonstrate an absence of native title throughout the Port Stephens area. The evidence needs to concern the Land. However, evidence that relates to an area that goes beyond a recently subdivided lot is likely to be relevant. The question remains, however, whether there are native title rights and interests over Lot 576. • It is not in dispute that all formal requirements for a non-claimant application for a determination of the absence of native title have been met. In the absence of any evidence as to the existence of native title over the Land, the Land Council would be entitled to the determination it seeks. Both the Land Council and Worimi have adduced evidence addressing the existence of native title. It is necessary to consider the whole of that evidence to ascertain whether the Land Council has established, on the balance of probabilities, that there is no native title or whether sufficient doubt has been cast on the Land Council's case.


case_title: Mason v Tritton (1994) 34 NSWLR 572

case_text: Derschaw v Sutton (1996) 17 WAR 419 was a case of defensive native title to a criminal prosecution. That is, the defendants sought to establish the existence of native title as a defence. Justice Franklyn (with whom Murray J agreed) held at 431 that the defendants had to adduce or direct the Court's attention to evidence of each of the material matters necessary to establish the existence of native title. Despite Worimi's submission that the case has no precedent value, it should, as a decision of the Full Court of the Supreme Court of Western Australia, be followed unless it is plainly wrong ( Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]). Similar reasoning has been followed in other cases (see, for example, Mason v Tritton (1994) 34 NSWLR 572; Dillon v Davies (1998) 156 ALR 142 ; Lewis v Wanganeen [2005] SASC 36). Special leave to appeal Derschaw to the High Court was refused. In my respectful opinion, it is not plainly wrong. Justice Franklyn , drawing from Mabo v The State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 , pointed out that, in the absence of evidence going to each element of native title, there is insufficient foundation for the claim to have legal justification. I agree, with respect, with that analysis. To establish the existence of native title under the Act, the same elements of native title apply whether native title is asserted by an applicant or by a respondent. 72 In Mason v Tritton (1994) 34 NSWLR 572, Kirby P pointed to the difficulty for Aboriginal people to provide recorded details of, for example, genealogy. At 586 589, his Honour discussed the inferences that can be drawn to overcome the absence of evidence for the period from 1788 to a later time, in that case to the 1880s. Referring to the analysis in Wigmore on Evidence, vol 2, 3 rd edition at 437, his Honour said that it is not appropriate to apply a "presumption of continuance" but a process of inference. His Honour was prepared to draw an inference from proved use of land in the 1880s back to the time before 1788. As he noted, it is more easily drawn in more traditional Aboriginal communities. However, in Mason , there were other aspects of the claim to native title which were not proved. Further, it is hard to see from Yorta Yorta how a presumption of native title can be said to apply.


case_text: The Minister submits that a party seeking to resist the making of the orders sought in a non-claimant application must adduce or identify at least some credible evidence addressing the following matters as identified in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 , De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 and De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290: a that at the time of sovereignty there was "a body of persons united in and by its acknowledgement and observance of a body of laws and customs" (the "pre-sovereignty society"); b the nature and content of a normative body of laws and customs (the "traditional laws and customs") pursuant to which rights and interests were held at the time of sovereignty; c the nature and content of the rights and interests held at the time of sovereignty pursuant to the traditional laws and customs (the "traditional rights and interests"); d that the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time; e that the traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and that such acknowledgement and observance has continued substantially uninterrupted since sovereignty; f that since sovereignty the pre-sovereignty society and their successors have maintained a connection with the application area and have transmitted rights and interests in relation to the application area by and in accordance with the traditional laws and customs; g that they, the native title claim group (as a whole), acknowledge and observe the traditional laws and customs; h the nature and content of the traditional laws and customs observed by members of the native title claim group; i that, by the traditional laws and customs that are still observed by them, the native title claim group has a connection with the application area; j that, by the traditional laws and customs that are still observed by them, the native title claim group has rights and interests in the application area; k the nature and extent of the extant rights and interests; and, l that such rights and interests have not been extinguished, (or if extinguishment has occurred, it is to be disregarded); and are not "antithetical to the fundamental tenets of the common law". 55 Worimi does not need to establish that native title exists on the balance of probabilities. It is for the Court to assess the totality of the evidence to determine whether the Land Council has established, on the balance of probabilities, that native title does not exist. Worimi has identified a number of different groups, at various stages of these proceedings, that he says hold native title in the Land, including himself and his immediate family, and all Worimi people. He must also provide evidence that addresses, at the least, the Land Council's evidence that there is no native title within the principles set down in Yorta Yorta ; that there is no normative body of laws and customs in connection with the Land, the observance of which has been substantially maintained from the time of sovereignty to the present day. Worimi does not need to prove each element of native title. He is not obliged to establish native title as if it were a positive defence being asserted. He does, however, need to address native title under the Act by reference to those material matters. He must address the necessary elements sufficiently to cast doubt on the Land Council's assertion of no native title. He needs to show that there have existed traditional laws and customs in relation to the Land, the continued observance of those laws and customs and the maintenance of a connection with the Land. If he does not lead evidence as to each of those matters, elements of native title, he will need to adduce evidence, sufficient in scope and weight, as to one or more of those elements to cast doubt on the proposition that native title does not exist. 56 Worimi contends that the evidence required to discharge the Land Council's onus of proof ' may not be achieved without strict proof of historical and anthropological facts through use of widely accepted authoritative writings and expert evidence ' and ' involves consideration of the historical, archaeological, linguistic and anthropological evidence in the light of the direct testimony of Aboriginal witnesses '. Worimi says that, in determining the question of the existence or non-existence of native title on the balance of probabilities, regard should be had to the ability of the parties to adduce evidence. By this, he seems to be saying that the Court should give more weight to his evidence and discount the evidence of the Land Council. If he is, I do not accept it. 64 Based on the presumption that native title exists over the Land, Worimi contends that: • It is common ground that Lot 576 falls within traditional Worimi country. • The Land Council must prove that any connection which Aboriginal people may have had with the Land under traditional laws and customs has not been maintained. • In order to succeed, the Land Council must establish that traditional law and custom has ceased to be observed anywhere in "Worimi country". • It is incumbent upon the Land Council to adduce evidence from Worimi people positively to assert that no laws and customs have been passed down to them by their forebears and, additionally, there needs to be expert evidence that there were a set of normative rules traditionally adopted and followed and observed by the Worimi people. • Following Yorta Yorta , the Land Council must prove that pre-existing laws and customs have been substantially interrupted from what they were at sovereignty or no longer exist at all. • There must be evidence of the cessation of the acknowledgement of laws and observance of customs sufficient to show that those laws and customs have been abandoned by the whole of Worimi society. 65 Worimi submits that the evidence supports the inference that there was a group of Worimi people and a society of Aboriginal people who inhabited the area around Port Stephens at the time of sovereignty. For the purposes of this application, I accept that to be the case. 66 Worimi submits that, once this is accepted, it follows that this group had some form of normative rules which regulated their society and that, once this is accepted, it follows ' as a matter of logic and reason ' that, bearing in mind the burden of proof, the Land Council is required to lead sufficient evidence: (i) of the nature and existence of pre-sovereign native title rights and interests; and (ii) to the effect that these pre-sovereign rights and interests are no longer observed before the Court may infer the non-existence of native title over Lot 576. 72 In Mason v Tritton (1994) 34 NSWLR 572, Kirby P pointed to the difficulty for Aboriginal people to provide recorded details of, for example, genealogy. At 586 589, his Honour discussed the inferences that can be drawn to overcome the absence of evidence for the period from 1788 to a later time, in that case to the 1880s. Referring to the analysis in Wigmore on Evidence, vol 2, 3 rd edition at 437, his Honour said that it is not appropriate to apply a "presumption of continuance" but a process of inference. His Honour was prepared to draw an inference from proved use of land in the 1880s back to the time before 1788. As he noted, it is more easily drawn in more traditional Aboriginal communities. However, in Mason , there were other aspects of the claim to native title which were not proved. Further, it is hard to see from Yorta Yorta how a presumption of native title can be said to apply. 134 The Land Council seeks a determination of the absence of native title. That means native title under the Act. In Yorta Yorta , the High Court emphasised that native title under the Act must be understood in accordance with the definition in s 223(1) of the Act. That section provides: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 135 In Yorta Yorta at [31], Gleeson CJ, Gummow and Hayne JJ raised the importance of identifying whether the body of traditional law and custom that intersects with the common law for the purposes of s 223(1) of the Act is that as existing at the time of sovereignty or that existing today but connected with a body of law and custom that existed at sovereignty. Their Honours reiterated what had been said in Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96. Native title, with its origin in the traditional laws acknowledged and the traditional customs observed by the indigenous people who possess the native title is recognised by the common law. Their Honours went on to state that: ' An application for determination of native title requires the location of that intersection [between native title and the common law] and it requires that it be located by reference to [the Act]. In particular it must be located by reference to the definition of native title in s 223(1) '. A determination of the existence of native title is a creature of the Act ( Yorta Yorta at [32]). So too is a determination of the absence of native title. 136 A number of principles relevant to the present case were set out in Yorta Yorta: • Laws or customs in which native title rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system that existed before sovereignty (at [38]). • Observable patterns of behaviour may not amount to rights or interests in relation to land or waters under the Act (at [42]). • Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power are not given effect (at [43] and [44]). • This does not prevent the transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty. Nor does it prevent any alteration to, or development of, that traditional law and custom after sovereignty. Account may at least be taken of developments of a kind contemplated by that traditional law and custom (at [44]). • "Traditional" law or custom is apt to refer to a means of transmission of law or custom. In the context of the Act, the term "traditional" conveys an understanding of the age of the traditions. However, in the context of the Act, "traditional" laws and customs equate to the normative rules that existed before the assertion of sovereignty by the British Crown (at [46]). It follows that the mere use of the word "traditional" does not establish the normative rules necessary for the establishment of native title under the Act. • The normative system under which the rights and interests are possessed, namely the traditional laws acknowledged and customs observed, must have had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. Importantly, any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which right and interest must spring if they are to fall within the definition of native title (at [47]). • If the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, the laws and customs cease to have continued existence and vitality (at [50]). 137 The Land Council relies not only upon the absence of any claimant application over the Land but also on the evidence from Aboriginal people associated with the area who have confirmed that, in their view, the native title rights and interests that Worimi asserts do not exist. The Land Council has established that no Aboriginal person other than Worimi (and some of his immediate family who supported his claimant applications) asserts that native title exists in relation to Lot 576. All of the Aboriginal witnesses called by the Land Council identified as Worimi people. All are aware of the assertions made by Worimi concerning the existence of native title in the Land and gave evidence generally rejecting those assertions. Some of those witnesses were parties to claimant applications for a determination of the existence of native title in respect of land in the Port Stephens area but none of the witnesses have filed native title claimant applications in relation to the Land or land in the immediate vicinity of Lot 576. 153 Worimi says that his family and his mother before him were removed by actions of others and that the removal was not voluntary. In an area where non-Aboriginal communities developed, many Aboriginal families lived at Karuah, which is also part of Worimi land. In deciding whether claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with land, some interruptions to enjoyment of native title rights and interests is allowed ( Gale at [108], citing Yorta Yorta and De Rose ). 163 As in Yorta Yorta , if there had been a women's site on or near the Land and Kingsley Beach, much has changed since it was used. 164 This baptism of Worimi's grandson by his daughter Beryl and wife Cynthia represents an attempt by Worimi to restore what he says his grandmother told him, as amended by his wife's practices. It does not represent continuity. Worimi has claimed that the site is sacred to all Worimi women. No woman has supported this claim, apart from some members of his immediate family who supported his claimant applications. 165 In Gale, Madgwick J was dealing with a native title claimant application from which the claimants withdrew. One of the respondents, Deerubbin Local Aboriginal Land Council, sought an order that there was no native title over the subject land. Expert evidence had been filed in support of the claimant applications to which the Deerubbin Local Aboriginal Land Council had responded. His Honour considered Yorta Yorta and drew from it a number of relevant principles, including: • [N] ative title rights and interests derive from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia: Yorta Yorta at [75]. • The rights and interests must be presently 'possessed' under traditional laws and customs. This requires that the normative system under which those rights or interests are possessed ... be a system that has had a 'continuous existence and vitality' since sovereignty: Yorta Yorta at [47]. • Some change to or adaptation of traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests since sovereignty will not necessarily be fatal to a native title claim. • The statutory questions (in s 223) are directed to the present possession of the rights or interests, not their exercise, and to the existence of a relevant, present connection. It follows that the non-exercise of native title rights or interests by some of the persons now claiming such rights or interests ... will not inevitably be fatal. • The requirement in s 223(1)(b) for connection with land or waters by traditional laws and customs must be a connection which the peoples concerned have by their traditional laws and customs, that is the laws and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty. It is the normative quality of the normative rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which are now identified as native title. • It is an important qualification that the acknowledgment and observance of those rules need only have continued substantially, and not entirely, uninterrupted. • Nonetheless, it is necessary to demonstrate that it is the normative system of the pre-sovereign society out of which the claimed rights and interests arise. This entails that it be shown that that society has continued to exist as a body united by its acknowledgement and observance of the traditional laws and customs. • Acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. It is not enough that there be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe them, notwithstanding that they are similar to or even identical with those of an earlier and different society. 167 The positive assertion of native title rights and interests requires more than vague assertions of membership of a group of people and of "custodianship" of land. Worimi's facts and contentions comprehensively fail to establish the elements of native title required by s 223 of the Act. They do not establish native title within the meaning of Yorta Yorta . They do not identify the alleged content of the normative body of laws and customs acknowledged and observed by the pre-sovereignty society nor how those laws and customs have continued to be acknowledged and observed substantially uninterrupted. While Worimi is not required positively to establish native title in order to resist the Land Council's application, he must present evidence which is sufficiently cogent with respect to those elements that the evidence does address to cast doubt on the assertion that native title does not exist. 169 As the High Court said in Yorta Yorta , the relevant laws and customs must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters. Rights or interests created after sovereignty are insufficient, although there may be changes in the traditional laws and customs, at least to the extent that such changes and developments were contemplated by traditional laws and customs. 170 As was said in Yorta Yorta at [47] and repeated in Bodney at [47], if the normative system has not existed throughout the period since sovereignty, the rights and interests which owe their existence to that system will have ceased to exist. The law and custom arise out of and go to define a particular society, a body of persons united in and by its acknowledgment and observance of a body of law and customs ( Yorta Yorta at [49]; Bodney at [46]). ' Unless a society has, and acknowledges and observes, laws and customs under which native title rights and interests are possessed, there can be no native title rights whether communal, group or individual ' ( Bodney at [157]). It is therefore necessary for a person claiming native title to show that the normative system that existed at sovereignty is substantially the same as the one that exists today ( Bodney at [47]). This must be established for each generation to establish that the laws and customs have continued to be acknowledged and observed substantially uninterrupted ( Bodney at [70] [74]). 184 It follows from Yorta Yorta at [51] [56] that native title, if it existed pre-sovereignty, ceases to exist for the purposes of the Act if the society, being the Worimi people, the Maiaangal clan or the Garuahgal clan, ceased to acknowledge and observe the laws and customs that Worimi describes. The rights and interests to which those laws and customs give rise are not possessed under traditional laws acknowledged and traditional customs observed. They ceased to exist and the later adoption of the laws and customs does not give rise to rights and interests rooted in pre-sovereignty traditional law and custom. 185 The changes in Worimi's description of the persons who, he says, observe or observed the traditional laws and customs in respect of the Land have not assisted in the analysis of the evidence. As set out in Worimi 2007 and Worimi 2006 , he has changed the identification of the persons said to be relevant. As to the identification of family members in the claim group, Worimi has included, variously apart from himself, his wife and children, all his sisters and their daughters and his mother. He was not consistent in his evidence, asserting that he was bringing the claim on behalf of the Garuahgal women, his family and all Worimi people. Irrespective of the group said to hold native title over the Land, the requirements of s 223 of the Act are not satisfied. While Worimi was not required to establish native title in accordance with s 223 of the Act in order to resist the Land Council's application, given the time available to Worimi since these proceedings were commenced, he has had ample opportunity to formulate his contentions with reference to s 223 of the Act in order to cast sufficient doubt on the Land Council's case. 186 The evidence is that the observance of the traditional laws and customs ceased so far as a women's site on the Land is concerned. The evidence is not of adaptation of traditional laws and customs but of substantial interruption, amounting to cessation, of observance.


case_outcome: cited

case_text: The Land Council says that the standard of proof does not change or become more onerous than the civil standard because these proceedings concern native title. It acknowledges that, in considering whether that standard has been satisfied, the Court will have regard to the objects and purposes of the Act ( Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [28] ) and acknowledges that it is required to prove the negative proposition: that there is no native title over Lot 576. The Land Council does contend, however, that once it adduces evidence which, if accepted, establishes the negative proposition, the evidential onus to adduce evidence to show that the negative proposition is incorrect shifts to Worimi. The Land Council does not accept that it is required to establish the negative proposition by establishing the absence of each of the elements necessary to prove the existence of native title. 42 The Land Council and Worimi appear to agree that the evidential burden shifts to Worimi if the Land Council establishes sufficient evidence from which the negative proposition of no native title may be inferred. The real difference between the parties relates to their submissions regarding what evidence is sufficient to establish the negative proposition.


case_text: Where individual native title rights are claimed, they arise out of and depend upon the traditional laws and customs of the community in question ( Bodney at [148]). Rights may be communally held or held by a sub-group or, indeed, by an individual, depending on the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests ( Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [79] and [80]). In the present case, the native title rights over a Worimi women's site would be held by Worimi women. They deny such rights for Lot 576.


case_text: The applicant ('the Land Council') seeks a declaration that no native title exists in land at Boat Harbour in the Local Government Area of Port Stephens, Parish of Tomaree, County of Gloucester, State of New South Wales, being Lot 576 in Deposited Plan 48823 ('the Land' or 'Lot 576'). This is a non-claimant application, commenced on 31 December 2004, for an approved determination of native title pursuant to s 13 of the Native Title Act 1993 (Cth) ('the Act'). An application may be made to the Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Act). A determination made on such an application will constitute an ' approved determination of native title ' (s 13(3)(a)) unless varied or revoked (s 13(4)). 2 The Land Council is a body corporate established under s 50 of the Aboriginal Land Rights Act 1983 (NSW) ('the NSW Act') for an area delineated under s 49 of the NSW Act and known as the Worimi Local Aboriginal Land Council Area, which includes the Land. Membership of the Land Council is not confined by statute to persons with a traditional association with the area but, by s 54(2A) of the NSW Act, is open to adult Aboriginal persons who either reside within the Land Council's area or have a sufficient association with that area. Membership is also open to Aboriginal owners in relation to land in that area. 3 The Land Council's non-native title rights and interests arose from the grant and transfer of the Land to the Land Council by the Minister for Lands for the State of New South Wales ('the Minister') pursuant to s 36 of the NSW Act on 16 March 1998. Following the transfer of the area that includes Lot 576, the Land Council holds a non-native title interest ' in relation to the whole of the area in relation to which the determination is sought '. It is the holder of an ' an estate in fee simple ... subject to any native title rights and interests existing in relation to the land immediately before the transfer ' (s 36(9) of the NSW Act). As the holder of such an interest, the Land Council is entitled under s 61(1) (Table, clause 2) of the Act to make the present application. Section 40AA of the NSW Act prevents the Land Council from selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing with the Land unless the Land is the subject of an approved determination of native title within the meaning of the Act. 8 A notice of intention to become a party to these proceedings was filed within the three month time period provided for in the s 66 notice by New South Wales Native Title Services Limited ('Native Title Services') and by Mr and Mrs Parkinson. The application by Mr and Mrs Parkinson to be joined to the proceedings was dismissed ( Peter Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales, State Minister under the Native Title Act 1993 (Cth) [2006] FCA 61). Native Title Services was joined as a party on 5 July 2005. On 11 March 2008, an order was made granting leave to that party (whose name had been amended to NTS Corp Limited) to withdraw as a party to the proceedings.


case_text: The fact that Worimi describes some of the practices, such as hunting and fishing methods, differently from the description given by the other witnesses does not derogate from his evidence. It could well be the case that there were different ways of observing traditions. As was pointed out in Western Australia v Sebastian (2008) 248 ALR 61 at [84], a ' body of laws and customs ' does not require identical practice, nor that each member of a group has precisely the same knowledge or comprehends the laws and customs in precisely the same way. 174 Worimi submits that native title rights and interests may be possessed by individuals or by a group of individuals in circumstances where other members of the same community or society do not possess those or other native title rights and interests in relation to that area (citing De Rose (No 2) at [33], [34] and [44]; Sebastian ). Whether Worimi can establish native title where other members of the Worimi tribe state that there is no native title over the Land is, Worimi submits, not to the point. He says that his individual rights and interests have been recognised, inter alia in De Rose (No 2) at [30], as sufficient to cast doubt on the Land Council's case of no native title. 175 Worimi has given evidence. His case as to who holds the relevant native title rights and interests has changed throughout the course of these proceedings. In his affidavit of 18 December 2007, he claims that the native title rights and interests are held by his immediate family. However, in cross-examination and in his affidavit of 1 May 2008, Worimi claimed that all Worimi people hold native title in the Land. 176 As to the assertion that Worimi and his immediate family hold the native title rights and interests, I note that three members of his family, namely his brother Kelvin Dates, his sister Ms Quinlan and his daughter Priscilla Dates do not support his case. However, other members of his family have supported his claimant applications. Worimi says candidly that he would have expected other Worimi women to have knowledge of the laws and customs of which he speaks and accepts that they do not. However, the fact remains that Worimi has only adduced his own evidence of the detail of the beliefs and practices that he says relate to the Land. None of his family members have given evidence of the knowledge of or practice of traditional laws and customs.


case_title: Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770


case_outcome: related

case_title: Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357


case_outcome: applied

case_text: On 17 August 2005 the delegate made an entry in the applicant's file: '17 August 2005 reversed cancelled Uddin v MIMIA'. The respondent's solicitor has deposed that the respondent accepted the correctness of a decision of Scarlett FM in Uddin v Minister for Immigration [2005] FMCA 841 (' Uddin '). 18 On 7 June 2005 Scarlett FM had held in identical factual circumstances that a notice given purportedly pursuant to s 20 of the ESOS Act, did not comply with s 20(4) of that Act: Uddin . The Federal Magistrate held that because s 20(4) of the ESOS Act had not been complied with, s 137J of the Migration Act was not invoked and therefore the applicant's visa was not cancelled by operation of that section. 19 The notice given in Uddin was in the same form as the notice given in this matter. It did not advise the applicant that he was required to attend in person before an officer within the meaning of the Migration Act but, instead, advised him that he had to report personally to a compliance officer. It did not set out the effect of s 137J and s 137K of the Migration Act in that it did not inform the applicant that the applicant could avoid the consequences of s 137J by making himself available to an officer for the purpose of explaining the breach alleged in the notice. The notice did not bring to the applicant's attention the provisions of s 137K(2) and, in particular, advise the applicant that because of the provisions s 82 an applicant cannot apply for revocation when the visa would no longer have been in effect in any event had the visa not been cancelled under s 137J. Lastly, it did not bring to the applicant's attention the provisions of s 82 so as to allow the applicant to understand the provisions of s 137K(2). 20 Scarlett FM found that s 20(4) of the ESOS Act was mandatory in its terms. The notice did not comply strictly with the requirements in s 20(4) of the ESOS Act and, as I understand his reasons, s 137J(2) of the Migration Act therefore was not invoked and the Student visa was therefore never cancelled. 21 The Federal Magistrate made two declarations: '(1) That the Applicant's student visa was not cancelled by operation of law under section 137J of the Migration Act 1958. (2) That the Applicant was not an unlawful non-citizen at any stage.' He ordered that the constitutional writs issue to give effect to those declarations. 23 After Scarlett FM's decision, the Department identified visas which were purportedly cancelled pursuant to s 137J of the Migration Act where the purported cancellation was affected by the same error as identified in Uddin . The applicant was one of those visa holders. 24 On 18 August 2005 the same delegate notified the applicant of an intention to consider cancelling the applicant's visa under s 116 of the Migration Act notwithstanding that the delegate had previously assumed that the visa had already been cancelled by operation of s 137J of the Migration Act on 8 July 2005. 25 Section 116 of the Migration Act empowers the Minister to cancel a visa if the Minister is satisfied that any of the circumstances in s 116(1) have occurred. If the Minister is satisfied that the holder has not complied with a condition of a visa, the Minister may cancel a visa: s 116(1)(b) of the Migration Act . In the notice given the applicant by the delegate, the delegate identified the ground for cancelling the applicant's visa as being a 'possible breach of condition 8202(3)(b) for failing to achieve satisfactory academic results in school years 2003 and 2004', and 'Education Provider has reported visa holder as failing 14 courses out of 17 during 2003 and 2004'. 38 Both parties have asked me to assume that Uddin was correctly decided. I think that assumption can be made because if Uddin was incorrectly decided then the applicant's visa was cancelled by operation of s 137J on 8 July 2005 and that would be an end to the matter. To assume that Uddin was correctly decided is to make an assumption most favourable to the applicant. Therefore I will assume that Uddin was correctly decided. 39 It is necessary to determine the effect of the decision in Uddin . Uddin stands for the proposition that unless the notice given by the registered provider under s 20 of the ESOS Act complies strictly with subsection (4) (or at least paragraphs (b) and (d) of that subsection), the notice given is not a notice under s 20 of the ESOS Act and the automatic cancellation provisions of s 137J never apply. That is clear from the Federal Magistrate's reasons but made even clearer by the declarations which the Federal Magistrate made. The first declaration is that the applicant's visa was not cancelled by operation of law under s 137J. The second declaration, which is consistent with the first, is that the applicant was not an unlawful citizen at any stage. 40 If Uddin was correctly decided and the effect of the decision is as I have described it, then the applicant's argument fails at its first premise. The applicant's visa was never cancelled by operation of s 137J and it did not cease to have effect. It follows that the applicant was the holder of a visa as at 30 August 2005 and the delegate was empowered to cancel that visa. 41 I pointed out in argument that if Uddin is correct then the applicant's visa was not cancelled by operation of s 137J and, therefore, there was a valid visa in existence at the time the Minister's delegate made his decision on 30 August 2005. 42 The applicant's counsel argued, contrary to the decision in Uddin , that because the Migration Act provides for a procedure to review the cancellation (s 137K) and revoke that cancellation (s 137L and s 137N) , and because that decision is itself subject to a merits review by the MRT (s 338(3A)) 'in the context of the Act , the automatic cancellation is valid unless and until it is revoked by an administrative decision maker under s 137L , or otherwise subject to orders by a court of competent jurisdiction'. 43 There are difficulties with that argument. First, it is contrary to the decision in Uddin which I have been asked to assume is correct. Secondly, and more importantly, the argument is contrary to the provisions of the Migration Act . Section 137J applies if a notice is sent to a non-citizen under s 20 of the ESOS Act . Uddin , and the applicant's argument, assumes that no notice has been sent under s 20 of the ESOS Act . Therefore, it must follow that s 137J does not apply. Therefore, if no notice is sent to a non-citizen under s 20 of the ESOS Act , the non-citizen's visa is never cancelled under s 137J of the Migration Act . There can be no automatic cancellation. That is because the condition precedent for the operation of s 137J(2) has not been satisfied. No notice was given under s 20 of the ESOS Act . 44 It is true that the Migration Act allows for an applicant to apply to the Minister for revocation of the cancellation: s 137K of the Migration Act . However, the Minister may on such an application only revoke the cancellation for the reasons in s 137L(1). The Minister cannot revoke the cancellation because no notice was given under s 20 of the ESOS Act . Of course, one would not think that would be a reason for revocation of cancellation. If no notice is given, there could be no cancellation. 45 That procedure and the fact that that process is subject to merits review by the MRT does not support the proposition that where no notice is given under s 20 of the ESOS Act the visa holder's visa is automatically cancelled under s 137J and remains cancelled until revoked by an administrative decision maker or a court of competent jurisdiction. 55 There is nothing, in my opinion, in the Act or in Uddin which would support the applicant's contention that any administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the ESOS Act to a non-citizen. There is no administrative decision to be made. Section 137J(2) operates to cancel the non-citizen's visa. The only decisions which have to be made relate to the Minister's power to revoke the cancellation effected by s 137J(2). 56 Section 137K allow a non-citizen 'where visa has been cancelled under s 137J ' to apply to the Minister for revocation of the cancellation. That section also recognises that the cancellation is effected by s 137J not by any administrative decision. The Minister may revoke the cancellation for any of the reasons in s 137L(1) of the Migration Act . The Minister may also revoke cancellation on her or his own initiative: s 137N of the Migration Act . If the Minister does revoke the cancellation under s 137L or s 137N 'the visa is taken never to have been cancelled under section 137J ': s 137P(1) of the Migration Act . 57 The whole scheme of this subdivision of the Migration Act is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision. The Minister's decision making only extends to considering whether the statutory cancellation should be revoked. 58 It follows that the applicant's visa was either cancelled or not cancelled on 8 July 2005 depending upon whether s 137J operated. No administrative decision was made on or after that date to cancel the applicant's visas. It follows that because there was no decision the question of whether it was void or voidable does not arise. 59 For those reasons, that further argument must be rejected. 61 For the reasons I have given it follows that if, contrary to Uddin , s 137J operated to cancel the applicant's visa then the applicant has become an unlawful non-citizen. On the other hand, if Uddin is correctly decided, then the applicant was the holder of a visa as at 30 August 2005 when that visa was cancelled pursuant to s 116 of the Migration Act . Either way the applicant's visa has been cancelled and she has become an unlawful non-citizen. 62 It follows that the application must be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 24 January 2007 Counsel for the Applicant: Mr S D Ower Solicitor for the Applicant McDonald Steed McGrath Counsel for the Respondent: Dr C Bleby Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 October 2006 Date of Judgment: 24 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/18.html


case_outcome: followed

case_text: Gray v Associated Publishers (Aust) Pty Limited [2002] FCA 1045 , Branson J considered a similar claim for confidentiality where the respondents produced on discovery documents with the identity and personal details of external editors masked. Her Honour accepted that the respondents wished to protect the privacy of the external editors in the belief that they would object to the disclosure of their personal details to the applicant without their prior knowledge and consent. However, her Honour noted at [13] that, as recognised by Lord Wilberforce in Science Research Council v Nasse [1980] AC 1028 at 1065 cited by Spender J in Mackay Sugar Co-operative Association Limited v CSR Limited (1996) 63 FCR 408: There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone.


case_title: Mackay Sugar Co-operative Association Limited v CSR Limited (1996) 63 FCR 408


case_text: agreed to discover documents constituting or recording the process description for the synthesis of Intermediate B and the operating procedure for that process. While API is not subject to the obligation of discovery, Servier had raised with Apotex the possibility of a Sabre order ( Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company [1993] FCA 557 ; (1993) 46 FCR 428). API then voluntarily provided the documents to Apotex, redacted to remove information that would identify the supplier. This provision was on the basis that the supplier's identity would be protected. Apotex produced documents provided to it by API with the name, address and contact details of the supplier redacted ('API documents'). From the correspondence between the parties, it does not seem to be in dispute that Freehills (Apotex's solicitors) have in their possession documents disclosing the identity of the supplier. Freehills has stated in correspondence that it caused the documents to be redacted in accordance with instructions that the supplier does not wish to be identified. In no document provided to Servier has the identity of the supplier been revealed. API had requested documents, relevant to the discovery categories, from the supplier. For some time no documents were received from the supplier and Servier asked Apotex for the name, address and contact details of the supplier in order to pursue an application under the Hague Convention. Apotex indicated in correspondence that it could not provide the identity of the supplier as that was the confidential information of API and API did not consent to its disclosure. Eventually, the supplier provided two documents to API, which were produced by Apotex on discovery to Servier ('supplier documents'). Both of those documents were provided on a confidential basis and on the assurance by API that the supplier's identity would be kept confidential. Any redactions on the supplier documents were made by the supplier before they were provided to API. Subsequently, in response to Servier's requests, API made further approaches to the supplier for documents. At one stage, the supplier expressed a willingness to cooperate in providing further documents but subsequently informed API that no further documents will be provided. When the matter first came before the Court, I requested Apotex to make one further request of the supplier for ten batch records for Intermediate B which the supplier had previously indicated it would review and provide. Apotex was also given the opportunity to make contact with the supplier to advise it of Servier's application to obtain its identity and to determine whether any further documentation or information would be provided in the absence of an order of the Court. To date, no further documentation or information has been produced by the supplier. Servier's reasons for seeking the identity of the supplier


case_title: Science Research Council v Nasse [1980] AC 1028 at 1065


case_text: Had I not formed the opinion that s 424A had not been complied with, I would have granted relief under s 75(v) because the Tribunal used its erroneous understanding, that is, irrelevant material, to come to the conclusion that the appellant was lying about the loss of her house. That conclusion materially affected its reasoning process about her credibility generally so as to lead to the dismissal of her claims. As Mason CJ held in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-356 at common law '...the making of findings and the drawing of inferences in the absence of evidence is an error of law. (see too: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233 [25] - [28] , 238 [49], 251[99].)


case_text: The problem here is that the Tribunal failed to identify the original claim in relation to the burning of the appellant's house and instead attributed to her a claim of a markedly different character: namely one in which that assertion had not been made. The Tribunal thus identified a wrong issue and committed a jurisdictional error ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179). It is when the Tribunal seeks to use information which it considers would be the reason or part of the reason for affirming the decision that the requirements of s 424A(1) are engaged. 31 By s 424(1) of the Act the Tribunal was authorized to get the information in the material given to the Registrar by the Secretary of the Minister's department pursuant to s 418. Section 424(1) provides: 'In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.' 32 Since, here, the Tribunal got the information in the departmental file given to it pursuant to s 418 , the Tribunal was required by dint of s 424(1) to have regard to that information in making the decision on the review. Two consequences followed: first, s 424(1) made the information in the file relevant and, secondly, s 424A(1)(a) applied to any of that information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. 34 The Tribunal in so acting did not 'have regard to that information' in contravention of its obligation under s 424(1) to do so. As the High Court said in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'


case_text: The Minister also referred me to more recent authority including Stone J's decision in SZGIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1739 [31] to like effect. The Minister submitted that the Tribunal had a duty to consider all the material before it for the purposes of identifying what claim or claims an applicant for review had made in support of the claim for a protection visa, relying on the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (see e.g. at 393-394 [23]-[24] and [26]). For that purpose it was said that the Tribunal was entitled to have regard to all of the material before it. 37 Of course, the Tribunal is entitled to make erroneous findings of fact and would commit no jurisdictional error by doing so. In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394 [24] - [25] , Gummow and Callinan JJ held that a failure to respond to a substantial, clearly articulated argument relying upon established facts not only amounted to a failure at common law to accord natural justice but also was a constructive failure to exercise jurisdiction. The former category or error was shielded from judicial review by s 476(2)(a) of the Act but the latter attracted jurisdiction pursuant to s 75(v) of the Constitution . Of course, the grant of relief under s 75(v) is discretionary (see eg 197 ALR at 395 [33]). 38 The Tribunal did respond to some claim as to the loss of the appellant's house but misconceived what she had asserted. The function of the Tribunal was to review, pursuant to s 414(2) of the Act, the decision of the Minister on the claim made. It was not entitled to reframe that claim by materially altering it and then to proceed to decide the reframed claim while ignoring or overlooking the claim actually made. Yet, that is what happened in the present case for the Tribunal only purported to consider the original claim because it misconceived it. Therefore, the Tribunal committed a jurisdictional error, and did not simply make an error of fact, because the actual claim made by the appellant was never considered. The Act required the decision on that claim to be reviewed. What happened here was that the Tribunal considered and decided a claim the appellant had never made, namely one which omitted mention of the loss of her house.


case_text: Lord Wilberforce said in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E: ' If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, it becomes capable of challenge ...' (see too Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97]) 42 Had I not formed the opinion that s 424A had not been complied with, I would have granted relief under s 75(v) because the Tribunal used its erroneous understanding, that is, irrelevant material, to come to the conclusion that the appellant was lying about the loss of her house. That conclusion materially affected its reasoning process about her credibility generally so as to lead to the dismissal of her claims. As Mason CJ held in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-356 at common law '...the making of findings and the drawing of inferences in the absence of evidence is an error of law. (see too: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233 [25] - [28] , 238 [49], 251[99].)


case_text: I am of opinion that it is essential to have regard to the statutory obligation in s 430 of the Act for the Tribunal to make and record findings of fact and to give reasons. As McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] : 'It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material ( Repatriation Commission O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446, per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349, per Deane; at 353, per Fisher J; cf Fleming v The Queen [1998] HCA 68 ; (1998) 197 CLR 250 at 262-263 [28] - [29] ). ... The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 .' 20 The task of statutory construction obliges courts to construe a relevant provision so that it is consistent with the language and purpose of all the provisions in the statute as is pointed out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] . When s 424A refers to 'the reason or part of the reason' it does not divide the reasoning process into what is said to be 'integral' from what the Tribunal is required to express as its reasons in the language of s 430(1). In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33] Finn and Stone JJ discussed the need to isolate what their Honours termed to be 'the integral parts of the reasons for the tribunal's decision'. Their Honours said that task, necessarily, was an interpretive one. 22 The task of the Tribunal is to set out what it regarded as its material reasoning as the passage cited above from Yusuf demonstrates. In the present case, this distinction may not matter because the Tribunal used the language 'in light of all the above information', in coming to the conclusion that the appellant had been untruthful in relation to the burning of her house, having identified , inter alia , the initial application that the appellant had made for her visa as part of that information. And, in stating its ultimate conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations, the Tribunal said that it had '...considered the evidence as a whole'. 23 Indeed, it would be a work of supererogation to suggest that the Tribunal did not have regard to that original application in coming to its assessment of untruthfulness. For it was what was omitted from that information, as the Tribunal incorrectly perceived, which was part of the critical reasoning that it adopted. 24 In a practical sense, in the present case, one only has to think that if the Tribunal had told the appellant of its erroneous understanding that her original application was relevant for the review because there was no assertion of harm, she would have been able to point out that that was a complete misreading and that she had claimed that her house had been burnt. It is pointless to speculate as to what might have happened thereafter, for the imperative requirements of the Act were not observed and the consequence is that the procedural fairness which the Act mandated be accorded to the appellant was denied her. For that reason I am of opinion that there was a jurisdictional error vitiating the Tribunal's decision.


case_text: As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at 20 [63] : '... if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE (v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630] (at [47]. But as the Full Court said in WAEE (at [45]): If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.'


case_text: In NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Jacobson J considered the position where an applicant for review had been asked by the Tribunal when giving oral evidence as to whether the material in that applicant's original visa application was true and correct. He held that the answer and the matter to which it referred was not information given by that applicant within the meaning of the exception in s 424A(3)(b) (at [39]-[40]). I agree with his analyis for the reasons his Honour gave. 28 Where the Tribunal seeks to use the way in which an applicant for review formulated his or her claim originally as part of the reason for rejecting the claim, whether by reason of omissions or not, I am of opinion that in the natural and ordinary meaning of the language of the section, the original application or grounds stated by the applicant for review cannot be other than a part of the reason for rejecting the claim when that rejection is expressed in the language used in the Tribunal's reasons in the present case. 29 Accordingly, I am of opinion that there has been a jurisdictional error established in the reasons of the Tribunal in that it failed to give the appellant particulars in accordance with or otherwise comply with s 424A(1) in coming to the conclusion that the appellant had not suffered harm, inter alia , because she had been untruthful regarding the destruction of her house. That conclusion was based, at least in part, on the Tribunal taking into account the information which the appellant originally put before the delegate in the visa application.


case_text: Moreover, his Honour asked Ms Wong, who had also appeared before him as counsel for the Minister, to make submissions on a possible contravention of the procedure laid down in s 424A in light of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. His Honour adopted as correct Ms Wong's submissions that there had been no contravention of s 424A because sufficient independent bases for the Tribunal's decision appeared in its reasons ([2005] FMCA 1519 [17]). 21 But as Allsop J pointed out in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [213] - [215] (Weinberg J agreeing at [2006] FCAFC 2 [155]) that approach is inconsistent with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. I agree with Weinberg and Allsop JJ. The decision of the majority of the High Court in SAAP v Minister [2005] HCA 24 ; (2005) 215 ALR 162, of course, was decided after Finn and Stone JJ's judgment was given. Hayne J, with whom Kirby J expressly agreed on this point (215 ALR at 203 [173]-[174]) said that where the Act prescribes steps that the Tribunal must take in conducting its review and those steps were directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, any failure to comply with the requirements of s 424A rendered the decision invalid. McHugh J was equally emphatic (215 ALR at 184 [83]).


case_text: Lord Wilberforce said in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E: ' If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, it becomes capable of challenge ...' (see too Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97])


case_text: The significance of the misconstruction of the appellant's claim about her house in the present case was highlighted by the Tribunal's positive conclusion that she had been untruthful about it. That was tantamount to a finding that she had deliberately lied. Whether or not the lie was on oath, there is a difference between the rejection of a person's evidence and a finding that he or she deliberately lied as Brennan, Dawson, Toohey and Gaudron JJ explained in Smith v NSW Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 268. Their Honour's concluded: 'But, as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.' 41 The finding of the appellant lying about her claim was tied by the Tribunal to its misconception of what the original claim was and was arrived at in the prism of that pejorative misconception.


case_text: Moreover, there is a number of judgments in the Court in which conflicting views have been expressed as to whether the general proposition in VAF v Minister (2004) 206 ALR 471 at 447 lays down a rule of general application that identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc. can never amount to information. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out there may be a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of it. His Honour concluded (at [2005] FCA 1200 at [29] - [30] ): 'If, as here, the very form and content of a statement (including what was not said) is central to the rejection of virtually all of the evidence of the appellant, I do not see anything [Branson J said] in NIAH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 124 FCA 223 at [28] as necessarily inconsistent with an application of s 424A. To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.'


case_text: At no time did the Tribunal give the appellant any particulars under s 424A. The Tribunal had before it, and had regard to, the information which the applicant had provided in her original visa application and the other material in the departmental file, including that which the delegate had elicited from her. None of the information of the kind just mentioned fell within the meaning of the exception in s 424A(3)(b): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [5] - [9] , [154], [184] applying Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 33-34 [17] . 21 But as Allsop J pointed out in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [213] - [215] (Weinberg J agreeing at [2006] FCAFC 2 [155]) that approach is inconsistent with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. I agree with Weinberg and Allsop JJ. The decision of the majority of the High Court in SAAP v Minister [2005] HCA 24 ; (2005) 215 ALR 162, of course, was decided after Finn and Stone JJ's judgment was given. Hayne J, with whom Kirby J expressly agreed on this point (215 ALR at 203 [173]-[174]) said that where the Act prescribes steps that the Tribunal must take in conducting its review and those steps were directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, any failure to comply with the requirements of s 424A rendered the decision invalid. McHugh J was equally emphatic (215 ALR at 184 [83]).