case_title: BRGAB of 2007 v MIAC [2007] FMCA 823

case_text: The appellant sought judicial review of the Tribunal decision in relation to her application for the protection visa in the Federal Magistrate's Court ( BRGAB of 2007 v MIAC [2007] FMCA 823). Federal Magistrate Jarrett dismissed the appellant's application to set aside the decision of the Refugee Review Tribunal. 33 Federal Magistrate Jarrett cited the Tribunal reasons and found that the Tribunal did not fail to consider the appellant's case that she might be considered by some in Japan to have been convicted of, or guilty of, the offences of which she was charged in Australia ( BRGAB [2007] FMCA 823 at [35] ). The Federal Magistrate noted that the Tribunal concluded that she would not suffer ' serious harm ' even if that assumption were made. Failure to refer to the specific evidence of the detail of Japanese criminal law and procedure did not reveal error. Federal Magistrate Jarrett pointed out at [37] that, with respect to the claim that the Tribunal failed to make a finding as to the chance of prosecution in Japan, no offence was identified and the Tribunal was not obliged to accept speculative assertions unsupported by evidence.


case_outcome: cited

case_text: I respectfully agree with the Federal Magistrate. It is clear that the Tribunal did consider each of the issues it was required to consider for the purposes of making a decision. Section 430(1)(c) of the Act requires the Tribunal to set out the findings which it made and which it considered to be material. It does not oblige the Tribunal to make findings on every question of fact which is objectively material ( Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [9] and [67] [68]). There is no jurisdictional error in circumstances where the Tribunal has not specifically made mention of a particular piece of evidence in its reasons. As Jarrett FM said at [36], ' the case put by the [appellant] was considered, but rejected, by the Tribunal '. 35 This ground of appeal has not been established. 36 The appellant's complaint is that the Tribunal failed to identify the relevant principles for the determination of a particular social group within the meaning of Article 1A(2) of the Convention. The Tribunal did not discuss the principles of such determination. Federal Magistrate Jarrett pointed out at [38] that the appellant did not put her case on the basis that she was a member of a particular social group. The Minister concedes that the Tribunal did not follow the usual course when determining whether a group or class to which an appellant claims to belong is capable of constituting a particular social group under the Convention; namely whether there is an identifiable social group and whether the appellant is a member of such a group.


case_text: Section 424A of the Act does not require the Tribunal to give information to the appellant which is information that the appellant has given to the Tribunal for the purposes of the application. Determinations, thought processes or subjective appraisals of the Tribunal in considering the issues involved in this matter are not required by s 424A(1) to be given to the appellant ( SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]).


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471


case_text: I have proceeded upon the basis that greenhouse gas emissions consequent upon the burning of coal mined in one of these projects might arguably cause an impact upon a protected matter, which impact could be said to be an impact of the proposed action. I have adopted this approach because it appears to have been the approach adopted by Mr Flanigan. However I am far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described. The applicant's concern is the possibility that at some unspecified future time, protected matters in Australia will be adversely and significantly affected by climate change of unidentified magnitude, such climate change having been caused by levels of greenhouse gases (derived from all sources) in the atmosphere. There has been no suggestion that the mining, transportation or burning of coal from either proposed mine would directly affect any such protected matter, nor was there any attempt to identify the extent (if any) to which emissions from such mining, transportation and burning might aggravate the greenhouse gas problem. The applicant's case is really based upon the assertion that greenhouse gas emission is bad, and that the Australian government should do whatever it can to stop it including, one assumes, banning new coal mines in Australia. This case is far removed from the factual situation in Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24. 73 In the circumstances the application must be dismissed. I will hear submissions as to costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 15 June 2006 Counsel for the Applicant: S Keim SC C McGrath Solicitor for the Applicant: Environmental Defenders Office Counsel for the First Respondent: M Hinson SC M Swan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent D Jackson QC D Rangiah Solicitor for the Second Respondent Allens Arthur Robinson Counsel for the Third Respondent D Gove QC D Clothier Solicitor for the Third Respondent Clayton Utz Date of Hearing: 28 October 2005 Date of Judgment: 15 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/736.html


case_outcome: referred to

case_text: Order 35A applies where a party is in default, which is the case here; O 35A r2(2)(b). It permits the Court to give judgment against the respondent in default under r3(2)(c) and r3(2)(d). Speaking of O 35A r3(2)(c), in Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] , Heerey J observed: 'the rule does not require proof by way of evidence of the applicant's claim; rather that on the face of the statement of claim there is a claim for the relief sought and, of course, that the court has jurisdiction to grant that relief.'


case_outcome: applied

case_text: I am satisfied that the conditions of O 35A r3(2)(c) have been met and that I am entitled to make the orders sought. However, the applicants have elected to proceed under O 35A r3(2)(d) and accept that, in accordance with the principles stated in Australian Securities Commission v Macleod (1994) 54 FCR 309 at 314, I must satisfy myself on the evidence before me (uncontested though it may be) that their claims have been made out and I am justified in making the orders sought. On 6 June, after hearing submissions made by Ms Gay, the solicitor for the applicants and considering the evidence to which Ms Gay took me I reached that level of satisfaction and made the requested orders. I said that I would provide reasons at a later date; these are my reasons. 7 In their written submissions the applicants identify the offending conduct of the respondent as follows: '(a) the attempted importation, through his agent Bakhtyar Amani, of a range of clothing bearing the names "Bob the Builder" and "Thomas the Tank Engine" and related images in October 2004 ... (b) the offering for sale and sale of children's clothing featuring the names "Bob the Builder" and "Thomas the Tank Engine", and images of more characters, in October 2004 ... (c) the attempted importation of a range of clothing bearing the names "Bob the Builder" and "Thomas the Tank Engine" and related images in October 2005 ... (d) the offering for sale and sale of children's clothing featuring the names "Bob the Builder" and "Thomas the Tank Engine", and images of those characters in May 2006...' 8 The applicants have filed a number of affidavits in support of their claims. In addition to affidavits of service that I do not need to dwell on, they are: (a) affidavit of Craig Raymond Douglas, a licensed enquiry agent, sworn on 23 May 2006; (b) affidavit of Dani Muntz, Operations Manager for Nationwide Research Group Pty Limited, sworn on 24 May 2006; (c) three affidavits of Rebekah Frances Gay, solicitor, affirmed on 25 May, 5 June and 6 June 2006 respectively; (d) affidavit Joyce D Slocum, General Counsel and Executive Vice President of the HIT Entertainment group of companies, affirmed on 25 May 2006; (e) Luke Muntz, Field Agent for Nationwide Research Group Pty Limited, sworn on 26 May 2006.


case_text: Order 29 r 2 is most commonly used to allow the Court to resolve preliminary issues or questions, which, once resolved, mean it is unnecessary for the Court to resolve other issues or questions in the proceeding. In such circumstances, splitting the trial can save the Court and the parties the time and expense of dealing with ultimately redundant issues. Here, the respondent's liability for all applicants' claims and quantum of the first applicant's claim could not be described as preliminary issues or questions. However, that does not mean they cannot be determined separately from the quantum of the second applicants' claims. Indeed, it is even possible for an order under O 29 r 2 to be made 'after the event' of the trial, where the Court has only, at that stage, dealt with issues of liability; see Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 641 at [5] to [6] per Gyles J.


case_text: The critical consideration when determining an application to split a trial is whether splitting the trial will result in 'savings in time and expense' (see Tepko Pty Limited v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ and Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 (' Dovuro ') at [142] per Hayne and Callinan JJ) such that it is 'just and convenient' for the order to be made; see also Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [9] per Branson J. 10 This is not an appropriate case to split the trial in the manner proposed by the first applicant and the second applicants (other than Kids Holdings Pty Ltd). There is no evidence that any significant time and expense will be saved by the Court granting the application. The first applicant and the second applicants (other than Kids Holdings Pty Ltd) have not discharged the onus of proving that the course proposed is just or convenient so as to displace the usual position that all issues and questions in a trial should be dealt with at the same time. Further, as counsel for Colliers submitted, in cases such as this, where claims in the accrued jurisdiction include negligence, it is not desirable to split the question of liability from the question of quantum; see Dovuro [2003] HCA 51 ; 215 CLR 317 at [142] . 11 The first applicant and the second applicants (other than Kids Holdings Pty Ltd) and Colliers have each raised competing claims about the utility of determining separately the quantum of the second applicants' claims, if they succeed on liability. It is not necessary to resolve that debate now because I do not consider that there would be any significant saving of time and expense in the course proposed by Mr Solomon's clients. 12 The application for an order under O 29 r 2 is dismissed. The respondent should have its costs of, and incidental to, that application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 12 April 2007 Counsel for the Applicants (other than Kids Holding Pty Ltd): Mr D H Solomon Solicitors for the Applicants (other than Kids Holding Pty Ltd): Solomon Brothers Counsel for Mr G Carrello: Mr C Cobby Solicitors for Mr G Carrello: Christensen Vaughan Counsel for the Respondent: Dr J T Schoombee Solicitors for the Respondent: Downings Legal Date of Hearing: 12 April 2007 Date of Judgment: 12 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/531.html


case_outcome: followed

case_text: The premise which underlies the general course of not splitting trials is that 'it is ordinarily appropriate that all issues in a proceeding be disposed of at the one time'; see Liberty Financial Pty Ltd v Scott [2003] FCA 226 (' Liberty Financial ') at [35]. 'It is incumbent upon the applicant [for the O 29 r 2 order] to show why there should be a departure from that course'; see Liberty Financial [2003] FCA 226 at [35] per Weinberg J.


case_text: The critical consideration when determining an application to split a trial is whether splitting the trial will result in 'savings in time and expense' (see Tepko Pty Limited v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ and Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 (' Dovuro ') at [142] per Hayne and Callinan JJ) such that it is 'just and convenient' for the order to be made; see also Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [9] per Branson J.


case_text: The course proposed by the first applicant and the second applicants (other than Kids Holdings Pty Ltd) is unusual. It is not uncommon for a trial to be split so that liability is determined before quantum, damages or compensation. But it is unusual for a trial to be split so that one applicant does not have the trial split with respect to its claim, while splitting the trial with respect to the other applicants' claims. These circumstances alone do not dictate that the trial should not be split. However, the Court must tread warily in this area. As Black CJ and Moore J said in Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 at [15] : 'The formulation of separate or preliminary questions is authorised by O 29, r 2 of the Federal Court Rules 1979 (Cth). But it is a procedure that should be adopted with caution and can be fraught with difficulties.'


case_title: Tepko Pty Limited v Water Board [2001] HCA 19 ; (2001) 206 CLR 1


case_text: The primary reason for this application concerns an agreement between the liquidator of Meadow Springs and a receiver and manager (Mr G Carrello) purportedly appointed by a creditor about the representation of Meadow Springs at the trial. That agreement is conditional on this application being granted. Dismissal of this application, in the absence of successful mediation of that issue, would require the Court to determine the competing claims of the liquidator and the receiver to represent Meadow Springs. Mr Solomon points to authorities, such as Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited (1998) 193 CLR 603 at [55], [97] and [124], which refer to the public interest in disputes being settled. However, the public interest does not require a Court to give effect to a settlement where it would not be appropriate to do so. A Court should not act otherwise than judicially and in good conscience simply to rubber stamp an agreement between those with an interest in litigation.


case_outcome: discussed

case_text: Aloridge Pty Ltd (prov liq apptd) v Christianos [1994] FCA 972 ; (1994) 13 ACSR 99 , Burchett J made an order under s 447A of the Act that the administration of a company end. A provisional liquidator had been appointed to the company and he was actively pursuing a number of disputes on behalf of the company, including a dispute about the charge held by the person who had appointed the administrator. In light of the facts, Burchett J drew the inference that the appointment of an administrator was made not for the purposes for which the Act makes provision, "but in order to wrest control of the affairs of the company away from the provisional liquidator in the hope that the administrator might prove more compliant" (at 102). In determining the purposes for the appointment of an administrator, Burchett J had regard to the object of Part 5.3A set out in s 435A.


case_text: Blacktown City Council v Macarthur Telecommunications Pty Ltd (admins apptd) [2003] NSWSC 883 ; (2004) 47 ACSR 391 , Barrett J made an order that the administration of a company end forthwith. Barrett J referred to the decision of the High Court in Williams v Spautz and said that a consideration of purpose meant that it was appropriate to examine first the proper purposes of Part 5.3A of the Act. He referred to s 435A and said (at 396 [19]): "But that is a broad statement only. Examination of Part 5.3A as a whole shows that there are several purposes which together contribute to the widely stated object. The provisions imposing the various moratoriums show that there is a purpose of allowing time for unpressured but reasonably prompt consideration of possible reconstruction possibilities. The provisions as to creditors meetings and creditor decision-making, including those concerning deeds of company arrangement, show that there is a purpose of allowing reconstruction possibilities to be pursued in such a way that, if creditors so desire, a legacy of debt may be left behind and winding up, which would normally be the product of an intolerable debt burden, may be avoided. Implicit in that, of course, is the proposition that the company will thereby be permitted to return to the mainstream of commercial life. Another purpose is that if the company is not capable of returning to the mainstream of commercial life, there will be some better outcome for creditors than that available in an immediate winding up. The importance of keeping that purpose in mind, in a case such as the present, was emphasised by Sundberg J in Dallinger v Halcha Holdings Pty Ltd (1995) 60 FCR 594 ; 134 ALR 178 ; 18 ACSR 835. "


case_text: power in s 447A(1) is a broad power. I refer to Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 ; Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378 which cases dealt with s 447A as it was in the Corporations Law .


case_title: Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378


case_text: Spacorp Australia Pty Ltd v Fitzgerald (2001) 19 ACLC 979 , Beach J made an order bringing the administration of a company to an end. He concluded that the action of a creditor of the company in appointing administrators was an abuse of process. The creditor had served a statutory demand on the company pursuant to s 459E of the Corporations Law . On an application by the company, the statutory demand was set aside. The creditor appealed and was successful. The company appealed to the Court of Appeal, and the time for compliance with the statutory demand was extended pending the determination of the appeal. At that point, the creditor appointed administrators to the company. Beach J found that, in the circumstances, the appointment of administrators was an abuse of process. His Honour said (at 982 [28]): "Having chosen to serve a statutory notice on Spacorp with a view to having it wound up and been thwarted in the way it has, I think that it was totally inappropriate for Myer to seek then to attain its objective by appointing administrators. All the more so when it was well aware of the fact that the appeal was on foot and that the Court of Appeal had stayed the time for compliance with the statutory notice until after the hearing and determination of the appeal."


case_text: St Leonards Property Pty Ltd v Ambridge Investments Pty Ltd (admins apptd) [2004] NSWSC 851 ; (2004) 50 ACSR 443 , Barrett J made an order bringing the administration of a company to an end. The improper purpose of the director and appointor in that case was to manipulate the "relation-back day" to his benefit. I should say at this point that counsel for Mr Foti did not seek to argue that Mr Salisbury's purpose was one involving the manipulation of the relation-back day. Mr Foti claims that Mr Salisbury had two improper purposes in appointing the administrators. As I have said, he acknowledges that, if one is made out, it must be the predominant purpose, and, if both are made out, then they must be the predominant purposes. First, it is alleged by Mr Foti that Mr Salisbury's purpose in appointing the administrators was to gain control of the company. He submitted that Mr Salisbury seeks to gain control by the share issue which forms part of Mr Salisbury's proposal for a deed of company arrangement. He pointed to the fact that if the share issue proceeds, Mr Salisbury will hold 242,002 of the 242,004 shares forming the issued share capital of the company. I asked counsel for Mr Foti to identify the benefit which would enure to Mr Salisbury if he put himself in this position. He said that Mr Salisbury would then be in a position to take the lion's share of any residual equity in the two apartments.


case_text: Foti accepts that he carries the onus of establishing that Mr Salisbury had an improper purpose in appointing the administrators. He acknowledges that there is no direct evidence of that fact and he asks the Court to draw an inference of an improper purpose. Both parties referred to the decision of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 (" Williams v Spautz "). The case is not directly on point, but it does contain an analysis of the common law doctrine of abuse of process where the abuse is said to be the bringing of proceedings for a collateral purpose. Mr Foti accepts that he must show not only that Mr Salisbury had an improper purpose, but also that it was his predominant purpose. Before examining the evidence, it is convenient to consider some of the cases which have addressed the circumstances in which the Court will find that an administrator was appointed for an improper purpose. In Blacktown City Council v Macarthur Telecommunications Pty Ltd (admins apptd) [2003] NSWSC 883 ; (2004) 47 ACSR 391 , Barrett J made an order that the administration of a company end forthwith. Barrett J referred to the decision of the High Court in Williams v Spautz and said that a consideration of purpose meant that it was appropriate to examine first the proper purposes of Part 5.3A of the Act. He referred to s 435A and said (at 396 [19]): "But that is a broad statement only. Examination of Part 5.3A as a whole shows that there are several purposes which together contribute to the widely stated object. The provisions imposing the various moratoriums show that there is a purpose of allowing time for unpressured but reasonably prompt consideration of possible reconstruction possibilities. The provisions as to creditors meetings and creditor decision-making, including those concerning deeds of company arrangement, show that there is a purpose of allowing reconstruction possibilities to be pursued in such a way that, if creditors so desire, a legacy of debt may be left behind and winding up, which would normally be the product of an intolerable debt burden, may be avoided. Implicit in that, of course, is the proposition that the company will thereby be permitted to return to the mainstream of commercial life. Another purpose is that if the company is not capable of returning to the mainstream of commercial life, there will be some better outcome for creditors than that available in an immediate winding up. The importance of keeping that purpose in mind, in a case such as the present, was emphasised by Sundberg J in Dallinger v Halcha Holdings Pty Ltd (1995) 60 FCR 594 ; 134 ALR 178 ; 18 ACSR 835. "


case_text: A deemed refusal to grant access to documents will thus only occur if the relevant request has been made to an "agency" or a "Minister". Ms Luck's request was made to the USQ. It is not a Minister. Nor is it an "agency". An agency is defined in s 4 of the FOI Act to mean "a Department, a prescribed authority or an eligible case manager." The USQ is none of these things. It is not a Commonwealth Department of State. It is not established under a Commonwealth enactment or for the purposes of a Commonwealth Act. It is established under a Queensland Act, the University of Southern Queensland Act 1998 (Qld). It is not "an eligible case manager". That being so there has been no refusal deemed or actual of Ms Luck's request for access to documents held by the USQ. As a result s 55(1) of the FOI Act and s 25 of the AAT Act do not confer jurisdiction of the Tribunal to hear and determine Ms Luck's application to it. No other source of jurisdiction has been suggested. There was, therefore, no decision, made by USQ, which the AAT had jurisdiction to review: see Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 at [132] . 13 The Tribunal, was therefore, correct in law in holding that it lacked jurisdiction and in exercising its powers under s 42A(4) of the AAT Act . Its reasons for so doing might have been expressed in more detail.


case_text: There is a further reason why Ms Luck's purported appeal to this Court, has little prospect of success. It is that, at least as presently drafted, her notice of appeal identifies no questions of law which could form the subject matter of the appeal: see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 (per Gummow J).


case_text: Section 31A of the FCA Act empowers the Court to give judgment for a respondent if an applicant or appellant "has no reasonable prospect of successfully prosecuting [a] proceeding ..." A proceeding may have no reasonable prospect of success even though it is not hopeless or bound to fail: see s 31A(3). This is not a case in which contested evidence is involved: cf Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) [2006] FCA 1352 ; (2006) 236 ALR 720 at 731 (per Rares J). In such a case the Court will approach the potential application of s 31A with some caution. USQ bases its application for summary judgment on a straight forward question of law: whether the AAT, as it held, lacks jurisdiction to entertain Ms Luck's application. The answer is, in my view, clear. Ms Luck has pursued her application for access to documents under both Commonwealth and Queensland freedom of information legislation. She may well have a right to challenge the USQ's failure to make a decision on her application under the Queensland legislation. She does not have that right under the Commonwealth Act for the reasons which I have explained.


case_text: In these circumstances her proposed appeal has no reasonable prospects of success. Indeed, it is bound to fail. The Court should, in the exercise of its discretion, dismiss the purported appeal under s 31A of the FCA Act : see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at 406-409 (per Gordon J). I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 22 October 2008 The appellant was self represented Counsel for the Respondent: Mr J Pizer Solicitor for the Respondent: Clayton Utz Date of Hearing: 22 October 2008 Date of Judgment: 22 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1582.html


case_text: way of arriving at the same result may be to observe that equity would not impose a fiduciary duty obedience to which would fetter foreign policy. I have no doubt that a contract entered into by the Commonwealth which purported to bind it to some particular foreign policy posture would be unenforceable: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54 at 75 per Mason J; A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532 at 543 per Gibbs CJ; City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 at 157-159 [43]-[50] per Ipp J with whom Malcolm CJ and Wallwork J agreed. Whilst it is true that equity can often achieve outcomes which the common law or statute appear not to countenance the doctrine of part performance is an obvious example I do not think that the Chancellor's foot treads the boards of the world stage.


case_text: authors of The Law of Torts in Australia (4th ed, OUP, 2007) devote an extensive section advocating a change to this position. They note the existence in the US of a right to recover where a case involves "extreme and outrageous intentional invasions of one's mental and emotional tranquility" citing Alcorn v Anbro Engineering Inc 468 P2d 216 (1970) at 218 [4] per Burke J. They also note the remarks of Lord Hoffman in Hunter v Canary Wharf Ltd [1997] UKHL 14 ; [1997] AC 655 at 707 to this effect: The perceived gap in Khorasandjian v. Bush was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v. Downton [1897] 2 Q.B. 57 and Janvier v. Sweeney [1919] 2 K.B. 316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v. Chief Constable of the South Yorkshire Police [1991] UKHL 9 ; [1992] 2 All E.R. 65. The policy considerations are quite different. I do not therefore say that Khorasandjian v. Bush was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.


case_title: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54


case_text: either event, it is plain that the question of the extent of the executive power is consigned to the Chapter III courts. In that regard, at a functional level, the situation is not so very different to the treatment given by the English courts to the question of the extent of the prerogative. For, at least since the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352, the courts of that country have asserted, and the other branches of government have eventually accepted, the final role of the courts in determining the ambit of that prerogative. Just as a Commonwealth law may delimit the scope of the executive power, so too it is well established that the prerogative may be excluded by statute. Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1 ; [1920] AC 508 is an example of where a statute was found to have curtailed the prerogative. In Australia, Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 is an example where a statute was found not to have that effect; the Full Court of this Court's decision in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 is a contrary example.


case_text: the Commonwealth made a broad submission that the act of State doctrine operated to prevent this Court from examining the rights and wrongs of the acts of a foreign State. Over a century ago the doctrine was held to form part of "the settled law of all civilized countries": Potter v Broken Hill Pty Company Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495 per Griffith CJ. More recently it has been described by the High Court as a long-recognised principle of international law: Attorney-General (UK) v Heinemann Publishers Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40 and by a judge of this Court as a rule of private international law: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354 at 415 [159] per Beaumont J. The Commonwealth's submission that the act of State doctrine exists must be accepted: Petrotimor at 366-369 [33]-[45] per Black CJ and Hill J, 415-416 [159]-[160] per Beaumont J.


case_title: Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477


case_text: will be seen that the provision requires an assessment of the prospect of Mr Habib's proceeding being successful. If this prospect is less than reasonable the Court may give judgment on the proceeding to the respondent. The insertion of subsection (3) has altered the pre-existing position that only proceedings which are hopeless or bound to fail should be dismissed. Nevertheless, it is a jurisdiction to be exercised with caution: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at 731 [45] per Rares J. The Commonwealth also applies to strike out various portions of the pleading pursuant to O 11 r 16 which relates to pleadings said not to disclose a reasonable cause of action or which are otherwise embarrassing. In relation to both s 31A and O 11 r 16 it is appropriate to assume in Mr Habib's favour that he would succeed at trial in proving each and every allegation of fact contained in the pleading. The Commonwealth's argument is that, even making that assumption, the proceeding cannot succeed. For present purposes the contents of the pleading may be summarised as containing the following sets of allegations: (a) allegations that Mr Habib was wrongfully arrested in Pakistan by the Pakistani and US governments in October 2001; (b) allegations of his torture whilst in Pakistan at the hands of the Pakistani authorities; (c) allegations of extraordinary rendition to Egypt and allegations of torture at the hands of Egyptian authorities; (d) allegations of his removal from Egypt to Afghanistan and thence to Guantanamo Bay; (e) allegations of mistreatment by the US government at Guantanamo Bay; (f) allegations that the Commonwealth was aware that Mr Habib was to be the subject of a rendition to Egypt and that, to the Commonwealth's knowledge, this would most likely involve torture; (g) allegations that the Commonwealth made no effort to secure his release from Egypt notwithstanding its awareness that he was being, or was very likely being, tortured there; (h) allegations that the Commonwealth provided the Egyptian authorities with information and documents that the Commonwealth had obtained from Mr Habib's home in Australia which the Commonwealth either knew or should have known would be used in his torture; (i) allegations that the Commonwealth failed to take any sufficient steps to procure his release from Guantanamo Bay; (j) allegations that an officer or officers of the Commonwealth interrogated Mr Habib in Guantanamo Bay whilst he was shackled to the floor; (k) allegations that following his return to Australia he was persecuted and harassed by the Commonwealth by its assisting the publisher of the Daily Telegraph in a defamation suit brought by Mr Habib against that publisher and, additionally, by denying him a passport; (l) allegations of defamation by the Commonwealth constituted, generally, by statements by its officials that Mr Habib was a terrorist.


case_title: Breen v Williams (1996) 186 CLR 71

case_text: assuming those obstacles could be overcome, Mr Habib's case on the breach of the alleged duty is conceptually deficient for the purpose for which his advisers seek to advance it. In the written submissions it was submitted on his behalf as follows: As Gaudron and McHugh JJ note [at 113] in Breen v Williams the fiduciary`s obligations under Australian law are proscriptive not prescriptive, but this does not permit the choice of a course which conflicts with either the duty owed or the dependence of the Applicant on the Respondent. In the present case a choice to decline to take steps favourable to the Applicant inevitably placed the Respondent in a position of conflict given the trust the Applicant placed in the Respondent with the Applicant abandoned to obvious unlawful detention and "rendition". But the nature of the "position of conflict" was left unexplained. Equity imposes upon fiduciaries a duty of undivided loyalty: Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449 at 465 per Brennan CJ, Gaudron, McHugh and Gummow JJ. The duty is the obligation to avoid being placed in a position where that undivided loyalty might be challenged. The breach of duty arises merely from being placed in the position of conflict and does not require that the conflict be acted upon. Thus the 'no conflict' rule is infringed where a fiduciary occupies a position where his self-interest and the duty to the beneficiary conflict: Warman International Ltd v Dwyer [1995] HCA 18 ; (1994) 182 CLR 544 at 557 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ. It is also infringed where the fiduciary takes upon herself conflicting obligations: Breen v Williams (1996) 186 CLR 71 at 135 per Gummow J.


case_title: Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352


case_text: Commonwealth's submission was that it could not possibly be said that it had acted for, or on behalf of, Mr Habib. This submission is too simplistic. It is accepted that there is some kind of duty owed by the State to its overseas nationals. For example, in Mutasa v Attorney General [1980] QB 114 at 118-120 Boreham J spoke of the Crown having a duty to protect a citizen from unlawful detention but of that duty being one of imperfect obligation and thus unenforceable. So too, in China Navigation Company Ltd v Attorney General (1931) 40 Ll L Rep 110 at 112 Rowlatt J spoke of an alleged duty to assist a citizen against piracy as being but a "political" duty: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 593-594 [62] - [66] per Tamberlin J. Thus, it is a little glib to say that there was no aspect of the relationship between Mr Habib and the Commonwealth which could involve it in potentially "acting" on his behalf.


case_text: are a number of different aspects to that broad principle. First , it is plain that the courts will absolutely abide the executive's views on questions such as the accession of foreign territory, the recognition of a foreign sovereign or the recognition of foreign States and ambassadors: see Chow Hung Ching v The King [1948] HCA 37 ; (1948) 77 CLR 449 at 467 per Latham CJ. Secondly , generally speaking, the issues which arise between nation States are unlikely to generate matters within the meaning of ss 75 and 76 of the Constitution for the rights and obligations in that plane do not form part of domestic law: Re Ditfort at 370 per Gummow J. Thirdly, for related reasons, such questions are usually unable to bring forth a plaintiff who has standing: Re Ditfort at 369. Fourthly , complaints about the conduct of Australian international relations are likely to take a court into an area which involves the consideration of undertakings or obligations depending entirely on political sanctions. Where that occurs it is generally thought there is no matter in the requisite sense: Re Ditfort at 370. For example, a complaint by an Australian exporter that trade sanctions had been negligently imposed on a country to which it exported would immediately involve this Court in the consideration of matters which it is institutionally unsuited to resolve: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 at 138-139 per Brennan J.


case_title: City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146


case_text: ratio decidendi of Giller is that the tort in Wilkinson v Downton is not available unless there is actual physical injury and that extreme mental distress does not constitute physical injury in the requisite sense. It would be inappropriate for me to depart from Giller unless convinced it was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] . Whilst I can see the force of some of the criticisms which have been made of the present position I could not possibly say that Giller was clearly wrong. Accordingly, I am bound to follow it.


case_title: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70


case_title: Giller v Procopets [2008] VSCA 236

case_text: authors of The Law of Torts in Australia also point to a decision of McDonald J in Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226-7 where a pleading was permitted to go forward to trial in which mere mental distress was alleged. More recently, however, the Victorian Court of Appeal has considered the issue in Giller v Procopets [2008] VSCA 236. In that case the defendant showed, or threatened to show, to others video footage depicting himself and the appellant, his former de facto partner, engaged in sexual activity. One of the claims was that those actions constituted the tort in Wilkinson v Downton . The appellant did not suffer psychiatric harm as a result of the threat but she did suffer severe emotional distress. Ashley and Neave JJ held that the tort did not extend to mental distress: [164]-[166], [471]-[477]. Maxwell P reached the opposite conclusion: [26]-[37]. The ratio decidendi of Giller is that the tort in Wilkinson v Downton is not available unless there is actual physical injury and that extreme mental distress does not constitute physical injury in the requisite sense. It would be inappropriate for me to depart from Giller unless convinced it was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] . Whilst I can see the force of some of the criticisms which have been made of the present position I could not possibly say that Giller was clearly wrong. Accordingly, I am bound to follow it. I am therefore faced with two quite different harassment cases each being seriously flawed. The current pleading does not allege psychiatric damage sufficient to constitute physical harm. While the mental and psychological distress it does allege is capable of being seen as flowing from the Commonwealth's behaviour towards Mr Habib upon his return to Australia, the decision in Giller renders this claim untenable. On the other hand, the proposed pleading suggests that the harassment is constituted by the Commonwealth's actions prior to his arrival back in Australia but that harassment is not said to be causative of any loss. Both pleadings are deficient in form. It is plain, I think, that the harassment allegation must be struck out. The question is whether leave to replead should be granted. I deal with that issue at the end of these reasons. Breach of fiduciary duty


case_text: authors of The Law of Torts in Australia also point to a decision of McDonald J in Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226-7 where a pleading was permitted to go forward to trial in which mere mental distress was alleged. More recently, however, the Victorian Court of Appeal has considered the issue in Giller v Procopets [2008] VSCA 236. In that case the defendant showed, or threatened to show, to others video footage depicting himself and the appellant, his former de facto partner, engaged in sexual activity. One of the claims was that those actions constituted the tort in Wilkinson v Downton . The appellant did not suffer psychiatric harm as a result of the threat but she did suffer severe emotional distress. Ashley and Neave JJ held that the tort did not extend to mental distress: [164]-[166], [471]-[477]. Maxwell P reached the opposite conclusion: [26]-[37].


case_text: application is made by an amended notice of motion filed 21 July 2008 and seeks the summary dismissal of the proceeding. The current form of Mr Habib's pleading is the third further amended statement of claim which I shall refer to as 'the pleading'. Leave to file the pleading was granted on 7 October 2008 but, as was made clear on the occasion of that grant of leave, this was on the basis that the Commonwealth's complaints about the pleading's predecessor would be taken as standing against the pleading: Habib v Commonwealth of Australia [2008] FCA 1494 at [12] . The Commonwealth's motion for summary dismissal was heard by me on 9 and 10 October 2008. At that time, Mr Habib propounded a further pleading styled the "Proposed Fourth Further Amended Statement of Claim". I shall refer to that document as 'the proposed pleading'. Final written submissions were received on 28 October 2008. The Commonwealth applies pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) for judgment in relation to all but one part of Mr Habib's case on the basis that the proceedings have no reasonable prospect of success. Section 31A provides: Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section.


case_title: Hamdan v Rumsfeld 548 US 557 (2006)

case_text: written submission was received connecting the Third and Fourth Geneva Conventions to the negligence case but, contrary to the grant of leave, not to the misfeasance in a public office case. The Commonwealth submitted, correctly I think, that no case was being put by Mr Habib based on the Geneva Conventions insofar as the tort of misfeasance in a public office was concerned. I am bound to accept that submission. There is, therefore, no occasion to consider whether Mr Habib was a prisoner of war covered by the Third Geneva Convention, or a civilian covered by the Fourth Geneva Convention, an enemy combatant (as the Commonwealth submitted at the hearing) or simply a person not covered by either Convention because there was no armed conflict in Pakistan at the time Mr Habib was detained (as the Commonwealth submitted in writing). Nor is there any need to consider the impact of Article 5 of the Third Geneva Convention which, on one view, requires the protection of that Convention to be afforded to a person whose status is unclear until such time as that status is determined by a competent tribunal: cf Hamdan v Rumsfeld 548 US 557 (2006) at 630 per Stevens J delivering the opinion of the court; Hamdan v Rumsfeld 344 FSupp2d 152 (DDC 2004) at 161-162 per Robertson J.


case_title: Hamdan v Rumsfeld 344 FSupp2d 152 (DDC 2004)


case_outcome: considered

case_text: Commonwealth's submission was that it could not possibly be said that it had acted for, or on behalf of, Mr Habib. This submission is too simplistic. It is accepted that there is some kind of duty owed by the State to its overseas nationals. For example, in Mutasa v Attorney General [1980] QB 114 at 118-120 Boreham J spoke of the Crown having a duty to protect a citizen from unlawful detention but of that duty being one of imperfect obligation and thus unenforceable. So too, in China Navigation Company Ltd v Attorney General (1931) 40 Ll L Rep 110 at 112 Rowlatt J spoke of an alleged duty to assist a citizen against piracy as being but a "political" duty: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 593-594 [62] - [66] per Tamberlin J. Thus, it is a little glib to say that there was no aspect of the relationship between Mr Habib and the Commonwealth which could involve it in potentially "acting" on his behalf. I have no doubt that the first duty does not exist, in the sense that it is not a "duty at law", although it may exist as an unenforceable political duty of imperfect obligation: Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 593-594 [62] - [66] per Tamberlin J. To embark upon a substantive consideration of whether the foreign policy steps taken by the Commonwealth were reasonable would involve this Court in directly examining the merits of Australian foreign policy. For reasons already given, such a duty cannot be countenanced. The duty propounded in the proposed pleading is in a different category. It seeks to avoid the difficulties inherent in pursuing a remedy which requires this Court to pass on the adequacy or otherwise of Australian foreign policy. Instead, it contends only that the Commonwealth owed Mr Habib a duty to consider whether to intercede with the foreign States on his behalf. It is apparent that this novel duty has its origins in this Court's decision in Hicks v Ruddock [2007] FCA 299 ; (2006) 156 FCR 574. In that case Tamberlin J refused to strike out a judicial review action brought by a Guantanamo Bay detainee against the Attorney-General. He sought to review the Commonwealth's decision not to intervene on his behalf with the US to seek his release. He did so on the basis that the Commonwealth had taken into account certain irrelevant considerations. Tamberlin J refused to strike the case out. The duty pleaded in the proposed pleading arguably does not fall foul of the difficulty outlined in Re Ditfort . To hold that the Commonwealth should have considered whether to intercede on Mr Habib's behalf does not, arguably, involve an impermissible examination of the merits or otherwise of foreign policy. However, Mr Hicks' and Mr Habib's cases are conceptually very different. Mr Hicks sought judicial review of a decision and habeas corpus. Mr Habib seeks damages in tort. Inherent in the claim in tort is much more than Mr Hicks' claim to have the Commonwealth reconsider its position. It is a claim of wrongful conduct causing damage. It must necessarily travel further than a mere claim for reconsideration which claim Hicks v Ruddock holds to be arguable and into territory which requires the Court to reach a conclusion on what the outcome of that reconsideration should have been. Indeed, as Lord Steyn explained at 1101 [113] in Kuwait Airways , the doctrine rests, in part, on the absence of available standards by which to judge the actions of the foreign state involved. Where the potential allegation is that the US and Egypt have committed grave breaches of the Geneva Conventions a clear standard is available: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 584-585 [21] - [23] per Tamberlin J where the potential interaction between the act of State doctrine and the Third and Fourth Geneva Conventions was examined. For those reasons, I do not think it can be said that the doctrine prevents a misfeasance suit potentially going forward. Indeed, on one view of things, it may well lie in the heart of the exceptions. Conclusion


case_text: Commonwealth submitted that no fiduciary duty could arise. There is, of course, no complete or comprehensive statement of what constitutes a fiduciary. However, where a novel fiduciary duty is alleged it is customary to refer to the judgment of Mason J in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 96-97 which is in these terms: The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf. Phipps v. Boardman [1966] UKHL 2 ; [1967] 2 A.C. 46 , at p. 127), viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions "for", "on behalf of", and "in the interests of" signify that the fiduciary acts in a "representative" character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.


case_title: Hunter v Canary Wharf Ltd [1997] UKHL 14 ; [1997] AC 655


case_text: of Mr Habib's claims would require a conclusion that a foreign State had committed grave wrongs. However, I would not regard the act of State doctrine as necessarily applicable to a claim based on misfeasance in a public office. This is because it is arguable that there is an exception to the principle where the acts of the foreign State in question constitute grave breaches of international law: Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19 ; [2002] 2 AC 883 at 1080-1081 per Lord Nicholls (with whom Lord Hoffman agreed at 1105 [125]), 1101 [113] per Lord Steyn, 1109 [140] per Lord Hope; Petrotimor at 369 per Black CJ and Hill J; cf. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 per Lord Cross. Indeed, as Lord Steyn explained at 1101 [113] in Kuwait Airways , the doctrine rests, in part, on the absence of available standards by which to judge the actions of the foreign state involved. Where the potential allegation is that the US and Egypt have committed grave breaches of the Geneva Conventions a clear standard is available: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 584-585 [21] - [23] per Tamberlin J where the potential interaction between the act of State doctrine and the Third and Fourth Geneva Conventions was examined. For those reasons, I do not think it can be said that the doctrine prevents a misfeasance suit potentially going forward. Indeed, on one view of things, it may well lie in the heart of the exceptions. Conclusion


case_text: the nature of the "position of conflict" was left unexplained. Equity imposes upon fiduciaries a duty of undivided loyalty: Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449 at 465 per Brennan CJ, Gaudron, McHugh and Gummow JJ. The duty is the obligation to avoid being placed in a position where that undivided loyalty might be challenged. The breach of duty arises merely from being placed in the position of conflict and does not require that the conflict be acted upon. Thus the 'no conflict' rule is infringed where a fiduciary occupies a position where his self-interest and the duty to the beneficiary conflict: Warman International Ltd v Dwyer [1995] HCA 18 ; (1994) 182 CLR 544 at 557 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ. It is also infringed where the fiduciary takes upon herself conflicting obligations: Breen v Williams (1996) 186 CLR 71 at 135 per Gummow J.


case_title: Mutasa v Attorney General [1980] QB 114


case_text: Commonwealth submits that such a pleading does not allege the elements of the tort of misfeasance in a public office. It is difficult to fault that submission. The tort was discussed by the High Court in Northern Territory of Australia v Mengel [1995] HCA 65 ; (1994) 185 CLR 307 at 345-348 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ. That case establishes that the tort has the following elements: (a) an act or omission by a public officer done: (i) with intent to harm; or (ii) knowingly in excess of his or her authority; and (b) involving a foreseeable risk of harm; and (c) causing loss or damage. It may be that element (a)(ii) will be satisfied where an official recklessly disregards the means of ascertaining the extent of his or her power: Mengel at 347. There is no suggestion in this case that the Commonwealth itself deliberately harmed Mr Habib. All of the actual harm appears to have been caused by the Pakistani, Egyptian and US authorities. So viewed, the matter cannot involve intent to harm in the sense identified in Mengel . The knowledge limb, and its possible extension to the position of an official who recklessly disregards the means of ascertaining the extent of his of her power, directs attention to paragraph 24 of the pleading which alleges: The respondent gave to Egyptian security officials information and documents including tapes of private telphone conversations, sim cards, a laptop computer, his address book, his Egyptian identity card, files taken from his home including files relating to Raqeem, Kadr, Mohammed Al Asra and Mohammed Dawood and photographs which the respondent knew or should have known would be used by those officials in the course of interrogation of the applicant, involving maltreatment and torture. This allegation might sustain an allegation of misfeasance in a public office if it could be alleged that so acting was beyond the executive power of the Commonwealth and that the officials involved recklessly disregarded the means of ascertaining the limits of their authority. As I have previously said, because s 61 of the Constitution extends the executive power of the Commonwealth to the maintenance of the laws of the Commonwealth, it is beyond that power to facilitate a breach of those laws. Thus, if it could be said that the provision of intelligence by the Commonwealth to the Egyptian authorities for use, to the knowledge of the Commonwealth, in Mr Habib's torture was contrary to Commonwealth law then at least one element of Mengel would be satisfied. During the course of the hearing discussion took place about the operation of the Third and Fourth Geneva Conventions (which deal respectively with the protection of prisoners of war and civilians during armed conflicts). Prior to 26 September 2002 the Geneva Conventions Act 1957 (Cth) made "grave breaches" of those Conventions a Commonwealth crime. "Grave breaches" under both Conventions included torture and inhuman treatment (Article 130 and 147 respectively). The Act had extra-territorial operation according to its tenor: s 6(2). Section 11.2(1) of the Criminal Code (Cth) had the effect of making it an offence to aid, abet, counsel or procure the commission of those crimes. On 26 September 2002 the offences created by the Geneva Conventions Act 1957 (Cth) were removed from that Act and re-enacted as Chapter 8 Division 268 of the Criminal Code (Cth). There may be an argument that these offence provisions had the consequence that neither the executive power of the Commonwealth under s 61 of the Constitution , nor any other source of statutory power such as s 8 of the Australian Federal Police Act 1979 (Cth) or s 17 of the Australian Security Intelligence Organisation Act 1979 (Cth), conferred lawful authority to aid, abet, counsel or procure the torture or inhuman treatment of Mr Habib. With that in mind, I granted leave to Mr Habib's counsel to put on further submissions about the relationship between the Geneva Conventions and the tort of misfeasance in a public office. In the circumstance where none of the constitutive elements of the tort have been pleaded, no explanation of how such a cause of action might operate proffered and an invitation to explore the interaction between the Geneva Conventions and Mengel unaccountably declined, it seems to me that the action must be struck out. In this context, it is also useful to consider the allegation in paragraph 21 of the proposed pleading that Commonwealth officials interviewed Mr Habib at Guantanamo Bay whilst he was shackled in chains. Whether such actions amount to aiding and abetting within s 11.2 of the Criminal Code (Cth) need not be decided. However, one question which might arise is the extent to which the construction of Division 268 is informed by matters of international law. In that regard, the advance report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has indicated that "even the mere presence of intelligence personnel at an interview with a person who is being held in places where his rights are violated, can be reasonably understood as implicitly condoning such practices": Martin Scheinin, UN Doc A/HRC/10/3 (2009) at 19. However, the nature of any such debate does not presently fall for decision.


case_text: of Mr Habib's claims would require a conclusion that a foreign State had committed grave wrongs. However, I would not regard the act of State doctrine as necessarily applicable to a claim based on misfeasance in a public office. This is because it is arguable that there is an exception to the principle where the acts of the foreign State in question constitute grave breaches of international law: Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19 ; [2002] 2 AC 883 at 1080-1081 per Lord Nicholls (with whom Lord Hoffman agreed at 1105 [125]), 1101 [113] per Lord Steyn, 1109 [140] per Lord Hope; Petrotimor at 369 per Black CJ and Hill J; cf. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 per Lord Cross.


case_text: the Commonwealth made a broad submission that the act of State doctrine operated to prevent this Court from examining the rights and wrongs of the acts of a foreign State. Over a century ago the doctrine was held to form part of "the settled law of all civilized countries": Potter v Broken Hill Pty Company Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495 per Griffith CJ. More recently it has been described by the High Court as a long-recognised principle of international law: Attorney-General (UK) v Heinemann Publishers Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40 and by a judge of this Court as a rule of private international law: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354 at 415 [159] per Beaumont J. The Commonwealth's submission that the act of State doctrine exists must be accepted: Petrotimor at 366-369 [33]-[45] per Black CJ and Hill J, 415-416 [159]-[160] per Beaumont J. Each of Mr Habib's claims would require a conclusion that a foreign State had committed grave wrongs. However, I would not regard the act of State doctrine as necessarily applicable to a claim based on misfeasance in a public office. This is because it is arguable that there is an exception to the principle where the acts of the foreign State in question constitute grave breaches of international law: Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19 ; [2002] 2 AC 883 at 1080-1081 per Lord Nicholls (with whom Lord Hoffman agreed at 1105 [125]), 1101 [113] per Lord Steyn, 1109 [140] per Lord Hope; Petrotimor at 369 per Black CJ and Hill J; cf. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 per Lord Cross.


case_text: the Commonwealth made a broad submission that the act of State doctrine operated to prevent this Court from examining the rights and wrongs of the acts of a foreign State. Over a century ago the doctrine was held to form part of "the settled law of all civilized countries": Potter v Broken Hill Pty Company Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495 per Griffith CJ. More recently it has been described by the High Court as a long-recognised principle of international law: Attorney-General (UK) v Heinemann Publishers Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40 and by a judge of this Court as a rule of private international law: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354 at 415 [159] per Beaumont J. The Commonwealth's submission that the act of State doctrine exists must be accepted: Petrotimor at 366-369 [33]-[45] per Black CJ and Hill J, 415-416 [159]-[160] per Beaumont J.


case_text: a cause of action may be viable in the United Kingdom: see R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213. However, it is not open for me to entertain the argument for it has been held on high authority that Australian law knows no action based on substantive legitimate expectations: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 21 [66] - [67] per McHugh and Gummow JJ, 48 [148] per Callinan J. See also Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at 186-187 [82] per Finn J. Misfeasance in a public office


case_text: the Commonwealth has the power to conduct foreign relations is undoubted. It is conferred by s 61 of the Constitution on the Queen and is exercisable by the Governor-General as her representative. No doubt that power bears many similarities to the similar prerogative power possessed by the Queen in her capacity as the sovereign of the United Kingdom. As Gummow J pointed out in Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 at 369 the question in this country is not the content of the prerogative but rather the meaning and operation of s 61. This has the immediate consequence that the question of whether the executive power extends to a particular topic is a question about the operation of s 61 and hence is a matter involving the interpretation of the Constitution within the meaning of s 76(i). And, because s 61 in turn is concerned with the maintenance of the laws of the Commonwealth, it follows that the executive power is subject to those laws. In consequence, the scope and ambit of the executive power existing under s 61 may, in a particular case, require an examination of the extent to which Commonwealth legislation has intruded into, or perhaps more accurately regulated, that power. In such a case, there would not only be a question of interpretation of s 61 but also, potentially, a matter arising under a law of the Parliament within the meaning of s 76(ii) of the Constitution . There are a number of different aspects to that broad principle. First , it is plain that the courts will absolutely abide the executive's views on questions such as the accession of foreign territory, the recognition of a foreign sovereign or the recognition of foreign States and ambassadors: see Chow Hung Ching v The King [1948] HCA 37 ; (1948) 77 CLR 449 at 467 per Latham CJ. Secondly , generally speaking, the issues which arise between nation States are unlikely to generate matters within the meaning of ss 75 and 76 of the Constitution for the rights and obligations in that plane do not form part of domestic law: Re Ditfort at 370 per Gummow J. Thirdly, for related reasons, such questions are usually unable to bring forth a plaintiff who has standing: Re Ditfort at 369. Fourthly , complaints about the conduct of Australian international relations are likely to take a court into an area which involves the consideration of undertakings or obligations depending entirely on political sanctions. Where that occurs it is generally thought there is no matter in the requisite sense: Re Ditfort at 370. For example, a complaint by an Australian exporter that trade sanctions had been negligently imposed on a country to which it exported would immediately involve this Court in the consideration of matters which it is institutionally unsuited to resolve: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 at 138-139 per Brennan J. The duty pleaded in the proposed pleading arguably does not fall foul of the difficulty outlined in Re Ditfort . To hold that the Commonwealth should have considered whether to intercede on Mr Habib's behalf does not, arguably, involve an impermissible examination of the merits or otherwise of foreign policy. However, Mr Hicks' and Mr Habib's cases are conceptually very different. Mr Hicks sought judicial review of a decision and habeas corpus. Mr Habib seeks damages in tort. Inherent in the claim in tort is much more than Mr Hicks' claim to have the Commonwealth reconsider its position. It is a claim of wrongful conduct causing damage. It must necessarily travel further than a mere claim for reconsideration which claim Hicks v Ruddock holds to be arguable and into territory which requires the Court to reach a conclusion on what the outcome of that reconsideration should have been.


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1


case_text: Commonwealth denies that such facts could constitute the tort of intimidation. There are three elements to this tort. First , there must be a demand made of the plaintiff by the defendant coupled with a threat to either the plaintiff or a third party: Stratford (JT) & Son Ltd v Lindley [1965] AC 269 at 283 per Lord Denning MR. Secondly , the threat issued by the defendant must be to commit an unlawful or illegal act. The illegality required need not be criminal; indeed, it has been held that a threat to breach a contract is a sufficient threat for the purposes of the tort: Rookes v Barnard [1964] UKHL 1 ; [1964] AC 1129. Thirdly , it must be shown that the plaintiff complied with the demand: Stratford at 283. Messrs Balkin and Davis in the Law of Torts (3rd ed, LexisNexis Butterworths, 2004) summarise the tort this way (at 654 [21.30]): The essence of the tort of intimidation is that the defendant has, by a threat to commit an unlawful act, coerced another person into acting in a way in which the latter did not wish to act, the defendant having thereby intended and caused economic damage to the plaintiff.


case_title: Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165


case_text: either event, it is plain that the question of the extent of the executive power is consigned to the Chapter III courts. In that regard, at a functional level, the situation is not so very different to the treatment given by the English courts to the question of the extent of the prerogative. For, at least since the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352, the courts of that country have asserted, and the other branches of government have eventually accepted, the final role of the courts in determining the ambit of that prerogative. Just as a Commonwealth law may delimit the scope of the executive power, so too it is well established that the prerogative may be excluded by statute. Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1 ; [1920] AC 508 is an example of where a statute was found to have curtailed the prerogative. In Australia, Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 is an example where a statute was found not to have that effect; the Full Court of this Court's decision in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 is a contrary example.


case_title: Stratford (JT) & Son Ltd v Lindley [1965] AC 269


case_title: Warman International Ltd v Dwyer [1995] HCA 18 ; (1994) 182 CLR 544


case_title: Wilkinson v Downton [1987] 2 QB 57

case_text: turn then to the harassment claim. Strictly speaking, there is no such tort. However, there is an action on the case for the intentional but indirect infliction of harm. In Wilkinson v Downton [1897] 2 QB 57 the defendant told the plaintiff that her husband had been seriously injured in an accident and that she should go and fetch him. This was completely untrue. On hearing the statement the plaintiff suffered a violent shock to her nervous system initially involving vomiting but subsequently producing permanent physical consequences. Some of these involved serious mental illness and included weeks of physical suffering. Wright J said (at 58-59): The real question is as to the 100 l ., the greatest part of which is given as compensation for the female plaintiff's illness and suffering. It was argued for her that she is entitled to recover this as being damage caused by fraud, and therefore within the doctrine established by Pasley v. Freeman (1789) 3 T. R. 51 and Langridge v. Levy (1837) 2 M. & W. 519. I am not sure that this would not be an extension of that doctrine, the real ground of which appears to be that a person who makes a false statement intended to be acted on must make good the damage naturally resulting from its being acted on. Here there is no injuria of that kind. I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant. It is, however, clear that in Australia a distinction is drawn between psychological harm (mere distress) and psychiatric harm (physical injury). The tort in Wilkinson v Downton is confined to cases of physical injury which may include nervous shock (such as suffered by Mrs Wilkinson) but does not include mere mental distress or anguish. The authors of The Law of Torts in Australia also point to a decision of McDonald J in Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226-7 where a pleading was permitted to go forward to trial in which mere mental distress was alleged. More recently, however, the Victorian Court of Appeal has considered the issue in Giller v Procopets [2008] VSCA 236. In that case the defendant showed, or threatened to show, to others video footage depicting himself and the appellant, his former de facto partner, engaged in sexual activity. One of the claims was that those actions constituted the tort in Wilkinson v Downton . The appellant did not suffer psychiatric harm as a result of the threat but she did suffer severe emotional distress. Ashley and Neave JJ held that the tort did not extend to mental distress: [164]-[166], [471]-[477]. Maxwell P reached the opposite conclusion: [26]-[37]. The ratio decidendi of Giller is that the tort in Wilkinson v Downton is not available unless there is actual physical injury and that extreme mental distress does not constitute physical injury in the requisite sense. It would be inappropriate for me to depart from Giller unless convinced it was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] . Whilst I can see the force of some of the criticisms which have been made of the present position I could not possibly say that Giller was clearly wrong. Accordingly, I am bound to follow it. This is an allegation that what was suffered was mental or psychological shock which, not being a claim for psychiatric harm, takes the claim outside the principle in Wilkinson v Downton . The words "seriously wounded and injured" when first appearing are in contradistinction to the words "suffered great pain of body and mind, mental and psychological shock and distress" which follow. The natural reading is that the first phrase is concerned with physical injury; the second with mental anguish. I accept that the words "otherwise seriously wounded and injured" may also contain an allegation of physical injury. However, for two reasons I do not read those words as applying to the harassment claim. First , it is unclear from paragraph 50 which of the very many allegations contained in paragraphs 5 to 49 of the pleading (of which only paragraphs 40 to 48 appear to be concerned with harassment) are connected to which of the losses alleged in paragraph 50. Secondly , it is apparent from the proposed pleading that the harassment claim is no longer pressed on the basis of events following Mr Habib's return to Australia. Instead, paragraph 25 of the Proposed pleading alleges: The actions and conduct of the respondent during the material time amounted to sustained harassment and intimidation of the applicant. I assume the words "material time" refer to the period after Mr Habib was picked up in Pakistan until his release from Guantanamo Bay. This must be taken to be so because the allegations contained in the pleading relating to the events which occurred upon Mr Habib's return to Australia, with the exception of the defamation allegations, have been omitted from the Proposed pleading. The pleading of loss in the Proposed pleading is at paragraph 26 and is in these terms: The applicant suffered physical and mental damage caused by prolonged unlawful incarceration, torture and ill treatment in Pakistan, Egypt and Cuba, and unlawful incarceration in Afghanistan. Be all of that as it may, it seems to me that there is the possibility that Mr Habib has a case for misfeasance in a public office and, perhaps, harassment in the Wilkinson v Downton sense. Particularly where there has been so far only one strike out application I do not think that I should deny leave to replead unless I am satisfied that the defects in the statement of claim are incapable of being cured. I am not satisfied of that in the case of the two causes of action I have mentioned. I do not see any basis upon which I may dispose of the defamation allegations as I cannot say they are incapable of succeeding even if they seem out of place in a case such as this. My conclusion, therefore, is that the pleading must be struck out but that there should be a grant of leave to replead the claims with respect to misfeasance in a public office, harassment and defamation. In relation to those matters, particularly the first, it is to be emphasised that the pleading raises issues which are of considerable technical complexity involving as they do the interaction between constitutional and administrative law and the law of tort. Although I have not acceded to the Commonwealth's argument as to the adequacy, from a technical perspective, of the pleadings it may be safely assumed that the next pleading will be held to proper standards.


case_text: There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled ( Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] ; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67] ). There is no reason to permit the applicant to amend to seek orders against the Delegate. 48 Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness: 1. The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act. 2. It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act. 3. It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading. 4. Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 ( Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review ( Zubair ; Cheng at [67]). 5. The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal. 6. No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal. 54 In Cheng , Siopis J addressed submissions that the Tribunal fell into jurisdictional error in failing to consider whether the Delegate had denied the applicant procedural fairness by reason of an allegedly misleading s 20 notice. As here, the alleged denial of procedural fairness was relevantly based on the failure of the applicant's expectation of being able to raise matters relating to her medical and personal circumstances as a means of preventing the cancellation of her visa, when there was an alternative course available where those circumstances could be raised as grounds for reinstating her visa (at [69]). His Honour applied Zhou and observed at [65] that '[i] t does not avail the applicant to impugn the procedural fairness of a process which is legally unrelated to the process which led to the impugned decision, namely, the cancellation of the visa under s 116 of the Act '. The processes are, as pointed out by his Honour at [72], ' legally separate '. 56 The decision under review in this case is that of the Tribunal. It is not suggested that the Tribunal failed to accord procedural fairness in its own procedures. Questions of procedural fairness must be considered by reference to the Tribunal's decision to affirm the Delegate's decision made under s 116 of the Act ( Cheng at [74]). 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review ( Zubair ; Ahmed ; Uddin ; Hamayun ). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision. 58 This submission cannot be correct and ignores the reasoning in Zhou and Cheng . The Full Court in Zhou stated comprehensively at [39] that alleged defects in a s 20 notice are not material to an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. Siopis J in Cheng specifically considered and rejected a submission that the Tribunal fell into jurisdictional error by failing to consider an alleged denial of procedural fairness on the part of the Delegate by reason of a s 20 notice being misleading. The s 20 notice has no role in the Tribunal decision. It is irrelevant to the Tribunal's review of the Minister's decision to cancel the visa under s 116, a decision with a different statutory basis. Once it is irrelevant and the question for this Court is jurisdictional error on the part of the Tribunal, the applicant cannot succeed on the basis of a denial of natural justice concerning the Notice. 60 Consistent with the decision in Zhou and Cheng , no jurisdictional error has been established on the part of the Tribunal in its review of the Minister's decision to cancel the applicant's visa pursuant to s 116 of the Act.


case_text: Mr Gormly argues that academic standards can never be fully objectified such that their application is a matter of mere administration. He points out that different institutions prescribe different rules and standards. The certification, he submits, is not merely administrative; it is not purely routine and non-discretionary. Mr Gormly submits that the education provider, by reason of its certification of an academic result "to be at least satisfactory" for the purposes of Condition 8202 and its issue of a s 20 notice under the Students Act, impermissibly performs a "migration function" without regard to the objects of the Act. Condition 8202(3)(b) is, he submits, ultra vires (cf Ellis v Dubowski (1921) 3 KB 621 at 625). It makes the education provider the decision maker on the terms of the visa condition and on a breach of that condition, resulting in automatic cancellation. Mr Gormly submits that the result is an invalid sub-delegation ( Conroy v Shire of Springvale and Noble Park (1959) VR 737).


case_title: Ellis v Dubowski (1921) 3 KB 621


case_text: There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled ( Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] ; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67] ). There is no reason to permit the applicant to amend to seek orders against the Delegate. 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness: 1. The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act. 2. It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act. 3. It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading. 4. Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 ( Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review ( Zubair ; Cheng at [67]). 5. The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal. 6. No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal.


case_text: Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review ( Zubair ; Ahmed ; Uddin ; Hamayun ). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision.


case_text: Mr Gormly adopts the characterisation of the defects in the s 20 notice in Morsed and relies upon the denial of procedural fairness resulting from that notice with its attendant effect on the opportunity for the applicant to rely on exceptional circumstances to avoid cancellation of her visa. He refers to Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [34] and submits that, because of the consequences of compliance with the Notice, the contents of the Notice cannot be quarantined from the procedural fairness requirements of a cancellation under s 116(3) of the Act. The failure to accord procedural unfairness cannot, he says, be cured by merits review by the Tribunal because of the lack of discretion on the part of the Delegate and the Tribunal.


case_text: By a further amended application filed in the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth), the applicant sought a declaration that Condition 8202(3)(b) of Sch 8 of the Regulations is invalid and a writ of certiorari to quash the Tribunal decision. This application to review the Tribunal's decision was referred to this Court by Emmett FM. A second further amended application was filed in this Court. The matter was then adjourned pending the anticipated judgment of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 125 FCR 115, which concerned one of the issues raised by the applicant in these proceedings. 9 Put shortly, the grounds of the second further amended application are based on the alleged invalidity of condition 8202(3)(b) and a denial of procedural fairness to the applicant. It is not in dispute that, if Condition 8202 is valid and there was no failure to accord procedural fairness, this application must fail. 10 In order to understand the alleged denial of procedural fairness, it is necessary to consider s 20 of the Students Act. Section 20(1) provides that a registered provider of overseas student courses must send the student a written notice if he or she has breached a student visa condition relating to attendance or satisfactory academic performance. That notice must state, inter alia, that the student is required to attend in person before an officer of the Department to explain the breach and set out the effects of s 137J and s 137K of the Act (s 20(4)(b) and (d) of the Students Act). 48 Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness: 1. The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act. 2. It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act. 3. It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading. 4. Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 ( Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review ( Zubair ; Cheng at [67]). 5. The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal. 6. No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal. 53 In Zhou , the applicant's visa was cancelled under s 116 of the Act on the grounds that she had breached Condition 8202 of her visa. The Full Court considered whether alleged defects in a s 20 notice under the Students Act are material to the resolution of an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. The Full Court determined that, even where the s 20 notice and the response to it give rise to the delivery of the notice of intention to cancel the visa under s 119 of the Act (at [41] and [43]), there is no implied limitation on the operation of s 116 (at [42]) and no ' legal interaction ' between the s 20 notice under the Students Act and the exercise of power in s 116 of the Act. Invalidity of the s 20 notice can have no invalidating effect on the s 119 procedure (at [40]). 54 In Cheng , Siopis J addressed submissions that the Tribunal fell into jurisdictional error in failing to consider whether the Delegate had denied the applicant procedural fairness by reason of an allegedly misleading s 20 notice. As here, the alleged denial of procedural fairness was relevantly based on the failure of the applicant's expectation of being able to raise matters relating to her medical and personal circumstances as a means of preventing the cancellation of her visa, when there was an alternative course available where those circumstances could be raised as grounds for reinstating her visa (at [69]). His Honour applied Zhou and observed at [65] that '[i] t does not avail the applicant to impugn the procedural fairness of a process which is legally unrelated to the process which led to the impugned decision, namely, the cancellation of the visa under s 116 of the Act '. The processes are, as pointed out by his Honour at [72], ' legally separate '. 55 That conclusion follows from Zhou . 58 This submission cannot be correct and ignores the reasoning in Zhou and Cheng . The Full Court in Zhou stated comprehensively at [39] that alleged defects in a s 20 notice are not material to an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. Siopis J in Cheng specifically considered and rejected a submission that the Tribunal fell into jurisdictional error by failing to consider an alleged denial of procedural fairness on the part of the Delegate by reason of a s 20 notice being misleading. The s 20 notice has no role in the Tribunal decision. It is irrelevant to the Tribunal's review of the Minister's decision to cancel the visa under s 116, a decision with a different statutory basis. Once it is irrelevant and the question for this Court is jurisdictional error on the part of the Tribunal, the applicant cannot succeed on the basis of a denial of natural justice concerning the Notice. 60 Consistent with the decision in Zhou and Cheng , no jurisdictional error has been established on the part of the Tribunal in its review of the Minister's decision to cancel the applicant's visa pursuant to s 116 of the Act.


case_text: Mr Gormly places considerable reliance on Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 90 at [22] [24] where the Full Court observed that a s 20 notice in relevantly indistinguishable terms was, for this reason, misleading. 47 Mr Gormly acknowledges that the Act provides, by s 357A, for its procedures to be an exhaustive statement of the natural justice hearing rule before the Tribunal. He contends that as the Notice was not a notice served under the Act but under the Students Act and, as that notice did not apply to the substantive right considered by the Tribunal and its validity was not part of the hearing before the Tribunal, that section does not apply. 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness: 1. The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act. 2. It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act. 3. It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading. 4. Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 ( Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review ( Zubair ; Cheng at [67]). 5. The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal. 6. No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal. 51 I agree, with respect, with the observations of the Full Court in Morsed at [21] that the Notice does not inform the recipient that, where the breach was due to exceptional circumstances beyond her control, the only way that a holder of a student visa who has breached Condition 8202 can avoid having their visa cancelled is not to comply with the Notice. The Notice is misleading for the reasons given in Morsed at [22] [25]. 52 Mr Gormly adopts the characterisation of the defects in the s 20 notice in Morsed and relies upon the denial of procedural fairness resulting from that notice with its attendant effect on the opportunity for the applicant to rely on exceptional circumstances to avoid cancellation of her visa. He refers to Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [34] and submits that, because of the consequences of compliance with the Notice, the contents of the Notice cannot be quarantined from the procedural fairness requirements of a cancellation under s 116(3) of the Act. The failure to accord procedural unfairness cannot, he says, be cured by merits review by the Tribunal because of the lack of discretion on the part of the Delegate and the Tribunal.