case_text: The first part of Mr Claveria's argument was that, by seeking the assistance of the union on the morning of 24 January 2007, he had recourse to "competent administrative authorities" within the meaning of s 659(2)(e). He relied on Catusanu v Ray's Guard Security Services (unreported, MD Murphy JR, IR Court of Australia, 29 July 1997) (' Catusanu' ). His counsel argued that the expression "competent administrative authorities" was to be broadly construed and, having regard to the status and rights accorded trade unions under Australian law, the expression applied to the union to which Mr Claveria had recourse. Counsel added that s 659(2)(e) was essentially a remedial provision designed to protect an employee against retaliatory termination where the employee took certain legitimate action against an employer in order to redress a relevant grievance. In view of its remedial character, the provision was to be liberally construed to constitute in substance "a catch-all" to cover the range of avenues available at law for the redress of grievance, including resort to a trade union. 11 Mr Claveria also argued that he filed a complaint within the meaning of s 659(2)(e) when he made his complaint to Mr Skourdoumbis by telephone on the morning of 24 January 2007. Alternatively, he argued that a complaint was filed when his complaint to Mr Skourdoumbis about the respondent's treatment was relayed by Mr Seneviratne to Mr Dunstan on the afternoon of that day. Mr Claveria contended that a complaint might be filed, although there was nothing in writing. 12 Counsel for Mr Claveria argued that reinstatement was appropriate and that the respondent's challenge to his work performance was unsubstantiated. In relation to penalty, counsel submitted that the Court should have regard to the serious nature of the contravention: namely, there had been an infringement of a basic right or freedom. Counsel also submitted that there has been a degree of duplicity about Pilkington's reasons and the Court should have regard to this. 15 Pilkington further submitted that the expression "competent administrative authority" did not cover the union or, indeed, any trade union. Counsel for Pilkington referred to the legislative history of s 659(2)(e), the legislative context and dictionary definitions. He submitted that the decision in Catusanu was wrong. Counsel argued that the expression described an authority with the capacity and the right to determine a controversy, which is properly raised with it. In written submissions, counsel said: No attempt to aggregate different sources of authority into a composite 'competent administrative authority' should be considered to create the authority required by section 659(2)(e) of the [Act] . Pilkington contended that: (1) the union was not an administrative authority because it had nothing to administer. Rather, it was "a partisan player in the industrial field"; (2) the 'administration' of the award is not the sole province of the union; (3) s 659(2) "serves the public policy aim of preventing retaliation"; and (4) the powers of the union are not the powers of a 'competent administrative authority'. In the latter regard, Pilkington said: The flavour of the 659(2)(e) section is that of dragging the employer to some third party capable of exercising coercive or investigatory powers. The union fundamentally lacks these. ... The powers of entry and inspection are not sufficient. 16 Counsel for Pilkington argued that, in the circumstances of the particular case, Mr Claveria's allegation of bullying by 'watching' him in the factory could not amount to a complaint of violating any law, in view of the type of work that Mr Claveria performed and his circumstances, including the warnings he had already received. Alternatively, he argued that there was no relevant relationship between the termination and the 'filing of a complaint' or Mr Claveria's recourse to the union. 17 Pilkington argued that, if a contravention of s 659(2)(e) were found, compensation in lieu of reinstatement was the more appropriate remedy. If a penalty were to be imposed, then, so its counsel argued, it should be a modest one in view of Pilkington's good record. 113 The specific question that arises here has apparently been considered on only one earlier occasion, by Murphy JR, in Catusanu . Murphy JR held that the expression "competent administrative authorities" in s 170DF (1)(e) embraced the union of which Mr Catusanu was a member. Mr Catusanu was employed by the respondent company as a security guard from May 1996 until his employment was terminated on 17 November 1997. Two days' earlier, on 15 November 1997, his union had sent a letter of demand to the employer alleging underpayment of some of its members, including Mr Catusanu, and foreshadowing proceedings if the matter were not rectified. Murphy JR stated: [T] he applicant's participation in the union's investigation of the alleged award breaches, and the service of a letter of demand on his behalf by the union, a registered organisation under the Act, is comprehended within the phrase "recourse to competent administrative authorities". Registered organisations are established under the Act. They have been accorded a particular status, and have privileges under the Act. They may be parties to an award. Their privileges include the right of appearance by their officers or employees (s 469), the right to sue for recovery of a penalty for a breach of an award (s 178), or to bring an application under Part VIA (s 170EA). Registered organisations thus have a clearly recognised and important role within the framework of the Act and for that purpose can be easily accommodated within the term "competent administrative authorities". The recourse by the applicant to the union, in circumstances [where] the union lodges a letter of demand on his behalf alleging a breach of an award, is recourse to a 'competent administrative authorit(y)' within the meaning of s 170DF(1)(e). I am not satisfied that the respondent has excluded this recourse as a reason for its termination of the applicant's employment. The respondent has breached s 170DF(1)(e). 114 As previously noted, s 170DF(1)(e) was renumbered as s 170CK(2)(e) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and renumbered again as s 659(2)(e) by the Workplace Relations (Work Choices) Act 2005 (Cth) . The terms of the provision have not changed. There was no formal letter of demand in the present case. However, Mr Claveria's communication to Mr Skourdoumbis about his treatment at Pilkington's factory and his request for assistance, which was taken up by the union and led to Mr Seneviratne requesting Mr Dunstan for a meeting to discuss Mr Claveria's bullying and harassment allegation would constitute "recourse to a competent administrative authority" providing the union is to be regarded as such an authority. 115 The respondent argued that not only was the decision in Catusanu wrong and that I should reject the reasoning in it, but also that under the Act as it now stood the standing of trade unions was significantly diminished. Accordingly, the reasoning in Catusanu had even less force than before. For the following reasons, I reject this submission. 116 Although not constituted by statute, trade unions continue to have a particular and distinct status as registered organizations under the Act. This status indicates that, for some purposes at least, they are capable of constituting "competent administrative authorities", although whether a union has such status in any particular case will depend on the nature of the allegation an employee makes against his or her employer, the relief sought, and whether the union is legally capable of managing, dealing with, or addressing the grievance appropriately. 117 The distinctive status of trade unions appears from the Act. The union in this case is an organisation of employees registered or taken to be registered under the Registration and Accountability of Organisations Schedule (Schedule 1 to the Act). There are various types of workplace agreements to which such a union may be party. Thus, an employer may make an agreement with a trade union in the circumstances referred to in s 328 of the Act, or a union greenfields agreement in the circumstances set out in s 329. Unions may be involved in multiple-business agreements: see s 331. Unions continue to be parties to awards: compare ss 543, 557, 559, 560. They continue to enjoy various rights to make applications to the Commission on behalf of employees: see, e.g., s 559(6). They also enjoy the right of appearance by their officers or employees (ss 100(8), 854(9)); the right to sue for recovery of a penalty for a breach of an award and other industrial instruments and for certain remedies (s 718); or to bring an application under s 643 in respect of termination of employment (s 643(3)); and to apply for an order under s 665 in respect of contraventions of ss 659 and 661. As perusal of the Act readily shows, this list is not in any way exhaustive. 118 Having regard to the breadth and importance of the rights of unions under the Act (some more of which are referred to below) it does not seem to me that a union is appropriately characterised as merely "a partisan player in the industrial field", as the respondent would have it. Whilst individuals may have some of the same rights as a union, they do not have the same aggregate of rights. Nor do they have them for precisely the same reasons as trade unions. Moreover, even if a union were appropriately characterised as "the advocate and advisor" of the employee, the union would not thereby cease to be a body "outside" the employer. Further, whilst the current Act may impose greater restrictions than previously on unions and their powers (for example, regarding a union representative's right of entry to investigate a suspected breach, discussed below) the character of trade unions and their powers remain largely the same. 119 Plainly enough, a trade union will not be a "competent administrative authority" for every grievance. Whether or not it has this status will depend on the nature of the grievance and the union's legal capacity to manage, deal with, or otherwise appropriately address it. As it happened, the union in this case had power by virtue of statute and the certified agreement to investigate and manage the allegation of workplace bullying and harassment, which Mr Skourdoumbis reasonably believed Mr Claveria had communicated to him on the morning of 24 January 2007. 120 By virtue of the Pilkington (Australia) Limited Automotive Division, Laverton Operations Agreement 2006 ('the certified agreement'), which was made pursuant to the former s 170LJ and certified by the Commission pursuant to the former s 170LT, the union could manage Mr Claveria's grievance. The certified agreement applied to Mr Claveria's employment. 121 The objectives of the certified agreement relevantly included the provision of "a healthy, safe and non-discriminatory working environment whilst ensuring compliance by the parties with all applicable occupational health and safety, equal opportunity and WorkCover legal requirements" (clause 6(v)). The certified agreement entitled the union to participate in a process to resolve grievances raised by Pilkington's employees. Amongst other things, the parties agreed, in clause 18(ii), that: ... subject to the provisions of the Workplace Relations Act 1996 as amended, all grievances, claims or disputes whether relevant to this Agreement or any other matter, shall be dealt with in the following manner so as to ensure the orderly settlement of the matters in question: (a) Any grievance or dispute that arises shall, where possible, be settled by discussion on the job between the employee and direct supervisor (e.g. Shift Co-ordinator or Site Leader). (b) If the matter is not resolved at this level, the matter will be further discussed between the employee concerned, the shop steward, the supervisor and the appropriate manager. (c) If no agreement is reached, the relevant Union official and shop steward will discuss the matter with the manager and the Company's nominated industrial relations representative. (d) Subject to the rights of the parties, should the matter still not be resolved, it shall be referred by either party to the Australian Industrial Relations Commission or to a third party mutually agreed. That is, under the certified agreement, the union was entitled to require that Mr Claveria's grievance be dealt with by discussion between union representatives and Pilkington and, if this failed, the union was entitled to refer the matter to the Commission. Pursuant to s 718 of the Act, the union was entitled to institute proceedings in a court for a penalty in relation to a breach of a term of the agreement. Further, as appears below, certain union representatives had rights of entry to the workplace in respect of suspected breaches of the agreement: see [123] and [125].


case_outcome: cited

case_text: The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion.


case_text: The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion. 97 The preamble to the Termination of Employment Convention indicates that the Convention was designed to state international standards with regard to the termination of employment at the initiative of the employer. The Convention is obviously aimed at providing protection for workers against unjustified termination: see also Mohazab at 205 per Lee, Moore and Marshall JJ. 98 The Termination of Employment Convention sets out general principles in terms that allow ratifying countries a deal of flexibility in their manner of observation. Thus, art 1, which falls into Pt I headed "Methods of Implementation, Scope and Definitions", contemplates that States will differ in the manner in which effect is given the Convention, taking account of national differences. The basic principle affirmed in art 4 of the Convention is that an employee's employment is not to be terminated without a valid reason, being a reason relating to the employee's capacity or conduct or based on the operational requirements of the employer's undertaking. Article 5, with which this case is principally concerned, lists reasons that do not constitute valid reasons. Article 5 states reasons that "shall not constitute valid reasons for termination" include union membership or participation in union activities, acting as a workers' representative, race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, and maternity leave. I have already referred to art 5(c), which is reproduced in s 659(2)(e) of the Act. I interpolate that the balance of art 5 is expressed in s 659(2)(b), (d), (f) and (h), although not always in terms identical with art 5. For example, s 659(2)(f) is wider than the equivalent art 5(d), presumably to give effect also to other international instruments such as the Convention concerning Discrimination in Respect of Employment and Occupation 1958 (C111) (done at Geneva on 25 June 1958: entered into force on 15 June 1960) and the Termination of Employment Recommendation 1982: see s 659(1). Article 6 provides that temporary absence from work because of illness or injury is not a valid reason for termination of employment: see s 659(2)(a). 99 Article 7, within Div B of Pt II, concerns procedure prior to or at the time of termination. Article 8 and 9, within Div C of Pt II, deal with appeal procedure. Other articles within Pt II relate to the period of notice (art 11) and severance allowance and income protection (art 12). Part III of the Convention is devoted to "Supplementary Provisions concerning Termination of Employment for Economic, Technological, Structural or Similar Reasons". 100 The Termination of Employment Convention uses the expression "competent administrative authorities" only once in art 5(c). Elsewhere the Convention refers to "competent authority": see, e.g, arts 2.4 and 2.5 ("measures may be taken by the competent authority or through the appropriate machinery"; art 8.2 ("competent authority" as opposed to "a court, labour tribunal, arbitration committee or arbitrator" in art 8.1 and "bodies" in arts 9.1 and 9.3; and arts 14.1 and 14.3 (notification to the "competent authority"). It may be inferred from this usage that the expression "competent authority" embraces any body that has the relevant capacity under national law to act in the way that the relevant article contemplates, as for example, to take the measures contemplated in arts 2.4 and 2.5, or to receive the notifications referred to in arts 14.1 and 14.3. It may also be inferred that the expression "competent authority" is wider than the words "a court, labour tribunal, arbitration committee or arbitrator". The expression "competent administrative authorities", on the other hand, apparently contemplates competent authorities of a particular kind. That is, the expression contemplates competent authorities of an administrative kind, as opposed to competent authorities of another variety (such as competent legislative authorities or competent judicial authorities). 101 The preparatory work is of some limited assistance. The Termination of Employment Convention has its immediate origins in the ILO Termination of Employment Recommendation , 1963 (R119) (done at Geneva on 26 June 1963). This instrument laid down basic standards regarding, amongst other things, the need for a valid reason for employment termination (point 2). It also contained the predecessor provision to art 5(c). It provided, at point 3(c), "the filing in good faith of a complaint or the participation in a proceeding against an employer involving alleged violation of laws or regulations" "should not constitute" a valid reason for termination. As can be seen, this early provision differed from the current art 5(c) in two respects: first, it contained a "good faith" requirement; and, secondly, it did not contain the expression "recourse to competent administrative authorities".


case_text: The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion. 129 Two further considerations fortify my conclusion that the union was in this case a competent administrative authority. The first is that s 659(2)(e) is plainly a remedial provision protective of an employee's fundamental rights. Its interpretation is therefore governed by well-accepted principle. Though dissenting, Black CJ reaffirmed this principle in AB v Registrar at [10] when he observed: One consequence of the principle that a statute should be interpreted in a way that promotes its objects (whether those are expressly stated or not) is that beneficial or remedial legislation should generally be given a liberal or generous construction in preference to a technical one. 130 Section 659(2)(e) contemplates that, in any particular situation, there may be a variety of competent administrative authorities to which an employee may have recourse. It is therefore immaterial that Mr Claveria may have turned to another body, which also had the legal capacity to deal with his grievance. It is enough that he turned to the union, which had relevant legal capacity to manage his complaint. It would defeat the purpose of this remedial provision if it were to be construed with too zealous a technical eye. To adopt an overly narrow interpretation of the expression "competent administrative authorities" is to narrow the practical protection that this provision is designed to afford. 131 This leads me to a second consideration that fortifies my conclusion with respect to the union. The history of trade unions in Australia is very different to the history of trade unions elsewhere (save perhaps for New Zealand). It is well-recognized that this is in large part because of Australia's conciliation and arbitration system, which developed around the beginning of the twentieth century. For a discussion of this phenomenon, see Peter Fairbrother and Charlotte AB Yates, "Unions in Crisis, Unions in Renewal?" in Fairbrother and Yates, (eds), Trade Unions in Renewal A Comparative Study (Continuum, New York and London, 2003) ('Fairbrother and Yates') 4-5; Stephen Frenkel, "Australian Trade Unionism and the New Social Structure of Accumulation" in Frenkel (ed), Organized Labor in the Asia-Pacific Region A Comparative Study of Trade Unionism in Nine Countries (ILR Press, Ithaca, New York) ('Frenkel') 250-253, 279, 312-313; David Peetz, Unions in a Contrary World The future of the Australian Trade Union Movement (Cambridge University Press, Cambridge) ('Peetz') 25; and Ian Turner, In Union is Strength. A History of Trade Unions in Australia 1788-1983 (Nelson, Melbourne, revised 1983 by Leonie Sandercock) 61-62.


case_title: Povey v Qantas Airwas Ltd (2005) 2223 CLR 189


case_title: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225


case_text: The Report makes two things clear, although they are probably apparent from the terms of the Termination of Employment Convention and its history. First, the specific object of art 5(c) is to protect an employee from termination in retaliation for his or her recourse to an appropriate body in relation to some alleged misconduct on the employer's part: see also Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; (2005) 144 FCR 347 (' Zhang ') at 352. Secondly, the expression "competent administrative authorities" has no technical meaning or fixed application. It may signify no more than an "appropriate body" (other than a legislative or judicial body or the employer) in the ratifying State to receive the communication of an allegation of misconduct on the employer's part. A body will be appropriate in this context if it has the legal capacity to manage or suitably address the allegation in some way (whether by investigation, a dispute resolution process, or otherwise). 107 To approach the expression in this way is in keeping with its ordinary meaning. I refer in this connection to English language dictionaries, such as the Oxford English Dictionary or The Macquarie Dictionary. The expression "competent administrative authorities" is plainly a compound one. Bearing in mind the terms, history and object of the Convention, as well as the specific object of art 5(c), it apparently signifies bodies (other than the employer) within the ratifying State having the legal capacity to manage, deal with, or suitably address the allegation in some way (other than by judicial decision or legislative action). In this context, an allegation of misconduct on the employer's part might be managed or suitably addressed in a variety of ways, including by investigation, reporting, prosecution, engagement of a dispute resolution process, making a determination or recommendation, or providing information and advice. I reject the respondent's submission that the expression "competent administrative authorities" refers only to "an authority with the capacity and the right to determine a controversy which is properly raised with it". This is to adopt an unjustifiably narrow approach, which is at odds with the history of art 5(c), and the aim of the Termination of Employment Convention and art 5(c). The purpose of art 5(c) is best served if a liberal interpretation of the expression "competent administrative authorities" is adopted, because it extends to an employee the protection against illegitimate retaliatory termination that art 5(c) was designed to give. 108 As previously noted, I infer from the statutory objects provisions, s 642(5), and the legislative history of s 659(1)(e) and s 642(5) that the meaning of the expression "competent administrative authorities" in s 659(1)(e) bears the same meaning as in art 5(c) of the Termination of Employment Convention, from which the expression derives. In particular, I reject the respondent's submission that the expression in s 659(2)(e) should be given a more restrictive meaning than in the Convention because of ss 660 and 661. I can discern no warrant for so doing.


case_outcome: discussed

case_text: To date, s 659(2)(e) has received limited judicial attention and the expression, "competent administrative authority" even less. In He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 (' He ') at 280, a Full Court held that s 170CK(2)(e) (a predecessor of s 659(2)(e)) was "directed to the making of complaints to outside authorities, either by way of instituting proceedings against the employer, or by way of making allegations to officials who are empowered to investigate such allegations" (emphasis added). Thus, the ground could not be established by the making of complaints directly to an employer. Zhang followed He on this point: see Zhang at 351 per Lander J, with whom Spender and Kenny JJ agreed.


case_outcome: referred to

case_text: As already stated, absent authority on the point, the natural meaning of the expression "competent administrative authority" is a body with legal capacity to manage, deal with, or suitably address an employee's allegation against his or her employer, in some way. In Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) Ritter JR reached much the same conclusion: see also Weier v Modern Alarms [2007] AIRC 432 at [59] per Senior Deputy President Richards. Thus, the Occupational Health and Safety Officer at the Victorian Trades Hall Council had no relevant competence to deal with the email communication made by Ms Zhang and was not a "competent administrative authority": see Zhang at 350; see also Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 at 92 per Marshall J.


case_title: Weier v Modern Alarms [2007] AIRC 432


case_text: As already stated, absent authority on the point, the natural meaning of the expression "competent administrative authority" is a body with legal capacity to manage, deal with, or suitably address an employee's allegation against his or her employer, in some way. In Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) Ritter JR reached much the same conclusion: see also Weier v Modern Alarms [2007] AIRC 432 at [59] per Senior Deputy President Richards. Thus, the Occupational Health and Safety Officer at the Victorian Trades Hall Council had no relevant competence to deal with the email communication made by Ms Zhang and was not a "competent administrative authority": see Zhang at 350; see also Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 at 92 per Marshall J. 135 The question arises as to what orders should be made. Mr Claveria seeks an order for reinstatement pursuant to s 665(1)(b), which the respondent opposes. The respondent argued that compensation in lieu of reinstatement was the more appropriate remedy. The respondent submitted that the Court should be satisfied that Mr Claveria "may not have worked for long, even if he had not been terminated on 24 January 2007", because of : a. the nature of his work, being in automotive glass; b. the reducing number of contracts ... c. the complaints about performance raised against the Applicant; and d. the assertion that these had been raised for a lengthy period. 136 There was little evidence led at the hearing in support of the first two factors. There was some evidence that some redundancies were foreshadowed and that Mr Claveria was likely to be amongst them. It was, however, by no means clear from the evidence that redundancies were in any sense inevitable in the near future. At most the evidence showed that it was possible that, if reinstated, Mr Claveria might be made redundant at some time in the near or distant future. If this were to happen, he would be subject to the terms on which redundancies were made. This is not a significant factor against reinstatement. 137 The principal factors relied on in opposition to reinstatement were Mr Claveria's work performance and his relationship with Mr Dunstan. Mr Claveria had been given a final warning by Mr Dunstan's predecessor in July 2006. There was, however, evidence that, when Mr Dunstan began, he had no difficulty with Mr Claveria and that Mr Dunstan told him, in August 2006, "we're going to make this a clean slate". Further, there was no reliable evidence that Mr Claveria's work performance was poor. Mr Dunstan conceded that there was no reliable evidence about the quality and quantity of his output, and that he had never observed Mr Claveria's work.


case_text: In conformity with this too, it has been held that an application for compensation under the no-fault compensation scheme established by the Accident Compensation Act 1985 (Vic) does not fall within s 659(2)(e); rather it is merely a claim for compensation: see Jennings v Salvation Army (2003) 128 IR 366 at 370-371 per Marshall J approved in Zhang at 352; see also Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [15] per Finkelstein J.


case_text: In conformity with this too, it has been held that an application for compensation under the no-fault compensation scheme established by the Accident Compensation Act 1985 (Vic) does not fall within s 659(2)(e); rather it is merely a claim for compensation: see Jennings v Salvation Army (2003) 128 IR 366 at 370-371 per Marshall J approved in Zhang at 352; see also Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [15] per Finkelstein J. 128 In Zhang the Full Court indicated that, whilst the filing of a complaint and participation in proceedings must involve alleged violation of laws or regulations by the employer, recourse to competent administrative authorities need not: see Zhang at [23]; contra Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [3] per Finkelstein J. This conclusion is consistent with the structure of s 659(2)(e) (and art 5(c) of the Termination of Employment Convention) as well as the history of the formulation of art 5(c): see [103] above. If, however, recourse to competent administrative authorities must also involve alleged violation of laws or regulations, then this element is also satisfied. This is because Mr Claveria alleged, in substance, that Mr Dunstan was bullying and harassing him. This conduct involved an allegation of violation of s 21 of the OHS Act.


case_text: Whether there can be a satisfactory working relationship between Mr Claveria and the respondent's representatives in the event of reinstatement is a relevant consideration. Counsel for Mr Claveria referred me to various authorities concerning s 170EE of Industrial Relations Act 1988 as it then was: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (' Perkins '); Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394; and Liddell v Lembke (1994) 127 ALR 342. This provision differed in terms from s 665. Some care must therefore be taken with these authorities. What they demonstrate, however, is that the Court has taken a reasonably robust attitude to an employer's claim of relationship breakdown with an employee following termination in contravention of a provision such as s 659(2)(e) of the Act: compare Perkins at 191. Moore J adopted much the same approach in Laz , in determining to make an order under s 170CR(1)(b) of the Act, which was in virtually identical terms to s 665. Although Mr Dunstan, Mr Findlay and Mr Claveria have been the subject of some strong criticisms in the course of this litigation, I doubt that this has created an insurmountable obstacle to Mr Claveria's reinstatement. The nature of Mr Claveria's work must be borne in mind, as well as the fact that he has worked for the respondent for many years. His long experience with Pilkington indicates that he has the capacity to take up employment with the company again. I accept that, if Mr Claveria returns to the Laverton factory, Mr Dunstan is likely to find the situation difficult initially, but I also accept that his embarrassment is likely to be short-term. Furthermore, the nature and extent of the Pilkington's workforce should be borne in mind. There was evidence, which was undisputed, that Pilkington employs about 15 workers on afternoon shift at the Laverton factory and about 23 on the day shift. It also operates a large plant in nearby Geelong.


case_title: Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394


case_title: Liddell v Lembke (1994) 127 ALR 342


case_text: An order for Mr Claveria's reinstatement should be made. Mr Claveria argued that any order for reinstatement should be reinstatement "with continuity of service and in the same position and on the same terms and conditions of employment as he had immediately prior to his dismissal". He relied on Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240. This was a decision concerning the former s 170EE of the Industrial Relations Act 1988 , which was relevantly different in terms to s 665: compare Laz at 259 per Moore J concerning s 170CR(1) of the Workplace Relations Act 1996 (which was in the same terms as s 665(1)). The respondent argued that in truth Mr Claveria had confused the Commission's power under s 654(3) with the Court's power under s 665(1). It contended that the orders that Mr Claveria sought were beyond the power of the Court.


case_text: In Treadwell v ACCO Australia Pty Ltd (unreported, Federal Court of Australia, VG 538/1997, 16 December 1997, BC9707067) Parkinson JR made orders under s 170CR(1)(b) similar in terms to those Mr Claveria seeks. If there is power to make orders of this kind, it derives from s 665(1)(d) and (e). Whilst s 665(1)(b) permits the Court to make an order requiring the employer to reinstate the employee, s 665(1)(d) permits the Court to make any other order it thinks necessary to remedy the effect of such a termination and s 665(1)(e) permits the Court to make any other consequential orders. These latter powers are broad. Section 665(1)(d) alone, alternatively s 665(1)(d) and (e) together, would support an order that the position to which Mr Claveria is reinstated be the same position on the same terms and conditions as he held prior to termination on 24 January 2007 or to another position on terms no less favourable; and that his employment be treated as having been continuous between the date of termination and the date of reinstatement.


case_outcome: applied

case_text: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 , which was a case in respect of an application for interlocutory injunctive relief in respect of the earlier intellectual property item known as a petty patent, Burchett J held that the fact that a respondent's product was capable of falling within the terms of the claim of the petty patent, as well as the fact that the Respondent's product was capable of use as an infringing device, meant that there was a serious question to be tried. On the material to hand, it seems to me that there is, in terms of use, an overlap as between the uses of the patented system of Tramanco and that which is marketed by BPW Transpec. It is necessary to sound a cautionary note in respect of that conclusion because of the very general nature of the information available at present in respect of BPW Transpec's system. The point was made on behalf of that company that the product concerned is, first and foremost, an electronic braking system with the feature that has excited Tramanco's interest, being something of an add-on. On the material to hand, that submission is well made, but it does not, in my opinion, affect the reaching of a conclusion that there is a serious question to be tried for the reason which I have given. There then falls, for separate, but not unrelated, consideration, factors going to the balance of convenience. Tramanco, by its managing director, Mr Sack, has, through its counsel, offered the usual undertaking as to damages. That undertaking, on the material to hand, is not one without substance. There is evidence in the material read today of the worth of Tramanco. Its assets, in total, amount to $2.3 million. It has no liabilities or encumbrances. It has a cash flow which is, on the material to hand, substantial and likely to increase.


case_text: The applicant in S1083 of 2003 sought an extension of time in which to file and serve a notice of appeal, or an application for leave to appeal, against Moore J's decision. That application was dismissed by Allsop J ( Applicant S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 295). His Honour adopted the reasons that he gave for dismissing a similar application brought by another person who had been an applicant before Moore J in S1083 of 2003 ( Applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294). Allsop J said that Moore J's view that Ozmanian FCA and Ozmanian FCAFC conclusively determined that the Court had no jurisdiction to review the refusal of the Minister and of the Department to consider the application under s 417 was correct, and that his Honour had correctly dismissed the application as incompetent. 48 Applicant S1083 of 2003 applied unsuccessfully to the High Court for special leave to appeal ( Applicant S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 015). The Court expressed itself as not being convinced that there was any error in the ultimate disposition of the matter in the appellate jurisdiction of this Court.


case_text: The applicant in S1083 of 2003 sought an extension of time in which to file and serve a notice of appeal, or an application for leave to appeal, against Moore J's decision. That application was dismissed by Allsop J ( Applicant S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 295). His Honour adopted the reasons that he gave for dismissing a similar application brought by another person who had been an applicant before Moore J in S1083 of 2003 ( Applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294). Allsop J said that Moore J's view that Ozmanian FCA and Ozmanian FCAFC conclusively determined that the Court had no jurisdiction to review the refusal of the Minister and of the Department to consider the application under s 417 was correct, and that his Honour had correctly dismissed the application as incompetent.


case_text: Ms Connolly's decision is not something provided for by the Act, and does not itself affect legal rights; cf Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 335 338. The decision of Ms Connolly is not susceptible to judicial review. The only decision that might conceivably be susceptible to judicial review is that of the Minister. However, it was permissible for the Minister take the decision not to consider exercising his power under s 417(1) by laying down guidelines as to the classes of case that were not to be referred to him ( Bedlington v Chong (1998) 87 FCR 75, discussed further below), and because of s 417(7), the jurisdiction-denying provisions, whether found in the former s 476(2) or in the present ss 474(1), (2) and (7), 476(2) and 476A(1)(a), cannot be avoided in relation to the Minister's decision by resort to the notion of jurisdictional error.


case_outcome: followed

case_title: Bedlington v Chong (1998) 87 FCR 75

case_text: Ms Connolly's decision is not something provided for by the Act, and does not itself affect legal rights; cf Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 335 338. The decision of Ms Connolly is not susceptible to judicial review. The only decision that might conceivably be susceptible to judicial review is that of the Minister. However, it was permissible for the Minister take the decision not to consider exercising his power under s 417(1) by laying down guidelines as to the classes of case that were not to be referred to him ( Bedlington v Chong (1998) 87 FCR 75, discussed further below), and because of s 417(7), the jurisdiction-denying provisions, whether found in the former s 476(2) or in the present ss 474(1), (2) and (7), 476(2) and 476A(1)(a), cannot be avoided in relation to the Minister's decision by resort to the notion of jurisdictional error. 65 In Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 , Katz J noted that Merkel J's conclusion in Ozmanian FCA that s 417 required the Minister personally to decide not to consider exercising the power under s 417(1) was rejected by the Full Court in Bedlington v Chong . (I think it plain that his Honour was directing his attention to the question of a decision not to exercise the power in the individual case.) Katz J added (at [31]): 'However, the rejection of Merkel J's conclusion on that matter appears, if anything, to make his conclusion about the unreviewability of the Departmental officer's decision by reason of the combined effect of para 475(2)(e) of the Act and subs 485(1) of the Act easier to accept.' 66 Katz J said that he found nothing in the reasons for judgment of the Full Court in either Ozmanian FCAFC or Bedlington v Chong that caused him to doubt correctness of the reasoning of Merkel J in Ozmanian FCA on the particular question of the combined effect of para 475(2)(e) of the Act and subs 485(1) of the Act. Katz J accepted the correctness of that reasoning and applied it to the decision said to have been made by Mr Fontana, who occupied a position in the Ministerial Interventions Unit, perhaps that occupied by Ms Connolly in the present case. 67 An alternative basis on which the respondents contend that the proceeding must fail is that the applicants cannot obtain the relief they seek. The foundation of this submission is that s 417 does not contain any provision for the making of a request or application to the Minister that would trigger a legal obligation on anyone to consider it. 68 I accept the respondents' submission that if Merkel J in Ozmanian FCA , intended to suggest that the Minister was under a duty to decide whether to consider each individual request for the exercise of the s 417(1) power, that suggestion cannot stand with the reasoning of the Full Court in Bedlington v Chong (which concerned the then s 48B of the Act, a comparable provision to s 417). A Full Court of the Federal Court there held that it was within the competence of the Minister to lay down guidelines for determining whether any request for the exercise of the power conferred by s 48B(1) should be referred to him. The Court held that such guidelines constitute a determination by the Minister, in advance, of the circumstances in which he will consider exercising the power (at 80). 69 Their Honours said (at 80 81) that so long as the Secretary was acting within the guidelines, she had no duty to refer a request to the Minister. Their Honours added that, in saying this, they should not be understood as indicating that even if the Secretary did not act in accordance with guidelines, Ms Chong would be entitled to any relief a matter that was not before their Honours. They added that in so far as Ms Chong's application for relief was based solely on the Secretary's failure to bring her application to the Minister's attention, or on any failure of the Minister to consider her application, it must be dismissed. 70 In their submissions, the applicants attack Ms Connolly's decision not to bring their request to the Minister's attention, relying on jurisdictional error. They rely on various grounds of such error, including a failure to adhere to the Guidelines by not paying due regard to the position of the children, a failure to take into account relevant considerations and a failure to accord procedural fairness. But for reasons previously given, in my opinion, the decision of Ms Connolly is not subject to judicial review, even if such grounds exist. 71 Proposed Order 1 is not available to the applicants. As noted above at [64], the Act did not empower Ms Connolly to make decisions, and the decision that she did make did not affect legal rights. 72 Proposed Order 2 is not available to the applicants because they do not have visas permitting them to remain in Australia that the Minister and the Secretary are threatening to disregard by removing them from Australia. 73 Proposed Order 3 is not available to the applicants because the Minister has decided not to exercise his s 417(1) power, according to a régime that is permissible: see Bedlington v Chong , above [68]. 74 Proposed Order 4 is not available to the applicants because there is no obligation on Ms Connolly to bring the applicants' repeat request to the notice of the Minister. As discussed above, the Minister has decided not to exercise his s 417(1) power in cases in which, relevantly and in effect, Ms Connolly should be of a certain opinion, and he intended that she should not bring repeat requests to his attention in cases in which she should be of that opinion. In view of s 417(7), it was entirely a matter for the Minister whether to establish a régime that depended on the subjective opinion of Ms Connolly. 75 For the reasons given above, the application should be dismissed with costs. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 16 March 2007 Counsel for the Applicants: Mr R Nair Solicitor for the Applicants: Allens Arthur Robinson Counsel for the Respondents: Mr GR Kennett Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 15 August 2006 Date of Judgment: 16 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/370.html


case_text: As in the present case, the respondents submitted that this Court lacked jurisdiction to entertain the proceeding, relying on s 476(2) of the Act set out at [16] above. They submitted that Ms Connolly's actions were those of the Minister in accordance with the principles established in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (' Carltona '), that is to say, that the Minister, acting through Ms Connolly had decided not to consider the repeat request. Accordingly, they submitted, s 476(2) deprived the Court of jurisdiction. 42 In S1083 of 2003, Moore J summarised the conclusions of Merkel J in Ozmanian FCA in a series of dot points, which, with some rearrangement and comment by me, were as follows: • s 417 provided for three kinds of decision a decision to exercise the power under s 417(1), a decision not to do so, and a decision not to consider whether to do so (at 118); • the Carltona principle is not applicable to any of the classes of decision under s 417, and, relevantly, although power to make the third class of decision may be delegated under s 496 of the Act, it had not been (at 120, 121); • as a matter of fact, however, the Minister's senior adviser was authorised by the Minister to make and to communicate the third class of decision (at 127); • a decision of the third class that was in fact made by a Departmental or Ministerial officer could not be treated as a decision of the Minister by the operation of the Carltona principle (at 121); • the Carltona principle had no application in a legislative context where the Minister had a general power to delegate powers, including the power to decide not to consider the exercise of the s 417(1) power (at 120 - 121); • even though the decision not to consider exercising the s 417(1) power was not made by the Minister, it was nonetheless a decision of 'the Minister' for the purpose of s 475(2)(e) (at 127); • it followed that the limit on jurisdiction created by s 485(1), denied the Court jurisdiction under s 5 of the AD(JR) Act in relation to that decision (at 128); • notwithstanding, the limit on jurisdiction did not deny the Court jurisdiction under s 6 of the AD(JR) Act in relation to conduct engaged in for the purposes of the Minister's making a decision under s 417 (at 134). 43 Merkel J approached the matter on the basis that he could grant relief in respect of conduct under s 6 of the AD(JR) Act, because there had been a breach of the rules of natural justice by Departmental officers in their consideration of the request. 44 In Ozmanian FCAFC , a Full Court allowed an appeal against Merkel J's decision. Sackville J, with whom Jenkinson and Kiefel JJ agreed, considered that 'the words "in respect of ... decisions covered by s 475(2)", as used in s 485(1) are wide enough to embrace conduct leading to a decision not to consider exercising the Minister's powers' (at 15 16).


case_text: The present applicants rely on the holding by Merkel J that a decision not to consider exercising the s 417(1) power must be made by the Minister or by the Minister's properly authorised delegate. In addition to relying on the reasoning of Merkel J in Ozmanian FCA , they refer to the approval of his Honour's reasoning in the present respect by Wilcox J in Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673. 50 The applicants' present submission does not take into account Merkel J's other holding (at 125 128) to the effect that, even though the decision not to consider exercising the power had not been made by the Minister or his duly appointed delegate as required by the Act, it was nonetheless a decision made under the authority of, and in purported reliance on, s 417, and was therefore a decision 'of' the Minister for the purposes of the jurisdiction-denying provisions contained in the then ss 475(2)(e) and 485(1) of the Act.


case_text: In S1083 of 2003, Moore J considered that the decisions of Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 (' Ozmanian FCA ') and of the Full Court on appeal from his Honour in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 (' Ozmanian FCAFC ') together provided a complete answer to the jurisdictional question.


case_title: Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103


case_outcome: considered

case_text: The applicants rely on Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157/2002 '). In substance, the applicants submit that s 474, as interpreted in Plaintiff S157/2002, has the effect that the jurisdiction-denying provision of s 476(2) is not attracted where jurisdictional error exists, because that which would otherwise be 'a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under ... section ... 417', is not such a decision at all. 52 Before I address this argument, I will consider the alternative legislative basis for the respondents' contention that the Court lacks jurisdiction to entertain the proceeding. 53 This alternative basis assumes, contrary to the respondents' primary submission, that s 476(2) is not the relevant jurisdiction-denying provision, but that the position is governed by the Act as it exists today. 59 I recounted his Honour's reliance on Ozmanian FCA and Ozmanian FCAFC at [40] [46] above. With respect, I agree with his Honour, subject to my returning to the applicants' argument concerning Plaintiff S157/2002 , which I will now address. 60 The first point to notice is that, if the current Part 8 applies, rather than the former s 476(2), even a purported privative clause decision is excluded from the Court's jurisdiction. On any reckoning, the decision not to consider exercising the s 417(1) power was a purported privative clause decision. 61 If the former s 476(2) is governing, or if the present ss 474(1), (2) and (7), 476(2) and 476A(1)(a) apply but the argument based on 'purported' does not conclude the matter, the question that arises is whether the decision not to consider whether to exercise the s 417(1) power is vitiated for jurisdictional error in accordance with Plaintiff S157/2002 . In my opinion, it cannot be. The reason turns on the express provision in s 417(7) that the Minister does not, in any circumstances, have a duty to consider whether to exercise the power under s 417(1). 62 The Minister could have decided not to consider any requests for the exercise of his power under s 417(1) for a specified period of time, and that decision would not have been subject to review. In the present case, his decision not to consider exercising that power was of a more limited kind. It is plain that the Minister's intention, as expressed in his note of 14 August 2003 relating specifically to this case, and in paras 6.5.7 and 6.5.11 of Guidelines MSI 387, was to decide not to consider exercising the power in the case of any request where the criteria of 'unique or exceptional circumstances' were not met 'in the opinion of the assessing officer' (his note of 14 August 2003) or where it 'appears' or is 'found' (to or by the relevant officer) (respectively Guidelines MSI 387 paras 6.5.7 and 6.5.11) that they are not met. 63 The Minister's decision not to consider exercising his power under s 417(1) in the particular case of the applicants comprises his decision just referred to operating upon the subjective judgment formed by Ms Connolly. There is no suggestion in the evidence that the Minister intended anything other than that provided the officer in good faith formed the view that the 'unique or 'exceptional circumstances' criterion was not met, the Minister did not wish to consider exercising his s 417(1) power. The applicants do not suggest that Ms Connolly did not act in good faith.


case_text: In S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1455 (' S1083 of 2003 '), the facts were similar to those of the present case, the respondents were in substance the same, and the same counsel appeared for the applicants and the respondents. In that case, as in the present one, Ms Connolly did not to pass on to the Minister a request for the exercise of the Minister's power under s 417(1). The applicants sought the following orders under s 39B of the Judiciary Act 1903 (Cth) and under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act'): '1. An order compelling the Manager [Ms Connolly] to consider the applicants' request under section 417 of the Migration Act ... in accordance with the Guidelines issued by the Minister and to bring the s 417 application to the attention of the Minister in order that the Minister can decide whether or not to consider exercising the Minister's power. 2. An order prohibiting the Minister and the Secretary from acting upon or giving any further effect to the Manager's failure to bring the s 417 application to the attention of the Minister, and prohibiting the Minister and the Secretary from removing the applicants from Australia. 3. An order compelling the Secretary to consider the s 417 application in accordance with the Minister's guidelines and to ensure that the Manager deals with the s 417 application in accordance with the Minister's guidelines.'


case_text: In Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 , Katz J noted that Merkel J's conclusion in Ozmanian FCA that s 417 required the Minister personally to decide not to consider exercising the power under s 417(1) was rejected by the Full Court in Bedlington v Chong . (I think it plain that his Honour was directing his attention to the question of a decision not to exercise the power in the individual case.) Katz J added (at [31]): 'However, the rejection of Merkel J's conclusion on that matter appears, if anything, to make his conclusion about the unreviewability of the Departmental officer's decision by reason of the combined effect of para 475(2)(e) of the Act and subs 485(1) of the Act easier to accept.'


case_text: Lundbeck referred to the following authorities for the proposition that, generally speaking, a power to make regulations is not construed so as to authorise the making of regulations which widen, vary or depart from positive provisions of the enabling Act, extend the scope and general operation of that Act, or operate in a way that is otherwise than strictly ancillary: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 250, 254; Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640; Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293 at 298-9; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 380; Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88 at 92; Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402 at 410. However, the starting point in each case is the empowering section. In the present case, s 228(1)(b) does not stand alone: there is s 228(2)(e) to be considered.


case_title: Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402


case_title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355


case_title: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245


case_title: Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629


case_title: Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293


case_text: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 a Full Court of this Court held at 303-4 that in order to determine whether a person was "eligible for surrender" the magistrate was required to determine, amongst other things, whether the offence was one which qualifies as an "extradition offence". In my opinion Zoeller, on this point, has been impliedly overruled by Kainhofer and for that reason I would not follow it. I am conscious that Katz J in Bennett v United Kingdom (2001) 179 ALR 113 at [6], which was decided after Kainhofer, followed Zoeller on this point. As his Honour observed, however, no argument was mounted that Kainhofer by implication overruled Zoeller in this respect and he did not consider the merits of such an argument.


case_text: applicant, pursuant to s 21 of the Act, seeks a review of the second respondent's determination of 20 August 2008. Section 21(2) of the Act confines the power of the review court to confirming or quashing the order of the magistrate; the matter cannot be remitted to the magistrate - Zoeller v Federal Republic of Germany (1989) 90 ALR 555 at 563 and Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315 at 321. Where a review process undertaken by a court concerns, as is the case here, an issue arising under s 19(2) of the Act, that review is undertaken by way of a rehearing: Republic of South Africa v Dutton (1997) 77 FCR 128 at 136; 147 ALR 310 at 317. Section 21(6)(d) of the Act prescribes that the review court shall have regard only to the material before the magistrate: Zoeller at 582; Brock v Minister for Justice and Customs at 321; Snedden v Republic of Croatia [2009] FCA 30 at [18] .


case_text: Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 at 537, consideration was given to the jurisdiction of a magistrate exercising functions under s 19 of the Act. In the joint judgment of Brennan CJ and Dawson and McHugh JJ (with whom Toohey J agreed), it was held that the conditions of jurisdiction prescribed by s 19(1) must be satisfied and then consideration must be given to the compliance of the supporting documents with the requirements of s 19(2)(a) and (b). Then the character of the conduct of the person constituting the offence or equivalent conduct must be ascertained under sub-s (2)(c) and finally the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence under sub-s (2)(d) at p 537. However, their Honours concluded at p 538 that the power of a s 19 magistrate did not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person. Significantly their Honours said at p 539: The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16. The function of the s 19 magistrate under sub-s (2)(a) of s 19 is concerned solely with the correspondence between the "supporting documents in relation to the offence" produced to the magistrate and the description of "supporting documents" in sub-s (3). The "offence" referred to in sub-s (2)(a) is the offence referred to in sub-s (1), namely, "the extradition offence or extradition offences for which surrender of the person is sought by the extradition country". Given that the person is an extraditable person, "the offence" in s 19(2)(a) must be taken to be either an offence "that the person is accused of having committed" or an offence of which the "person has been convicted". (Emphasis added) In this case no question arises as to whether the magistrate was in error in being satisfied as to any of the matters set out under s 19(1) or (2) of the Act. The issue is whether Article 2 para 5 of the Treaty operates upon s 19(1) so as to require the magistrate to consider whether, as a matter of law, the offence, namely the alleged war crime, was an extradition offence within the meaning of the Act. In my opinion the reasoning in Kainhofer is apt to the present case. The opinion of Attorney-General, necessarily formed under s 16(2)(a)(i) of the Act and prior to giving the Notice under s 16(1), that the applicant is an "extraditable person" is not reviewable under s 19 by the magistrate. Neither, in my view, is the related opinion of the Attorney-General reviewable that the offence articulated in the extradition request is an "extradition offence" for the purposes of the Act. Before forming the opinion that a person is an "extraditable person" the Attorney-General, by reason of s 6(b) of the Act must be satisfied that the offence is an "extradition offence". Furthermore and for the particular purposes of s 19 of the Act "extradition offence" referred to there is, by virtue of s 10(4) of the Act, the extradition offence to which the notice relates. Section 10(4) provides: A reference in this Act to an extradition offence for which surrender of a person is sought by an extradition country is, in relation to a time after the Attorney-General has given a notice under subsection 16(1) in relation to the person, a reference to any extradition offence to which the notice (including the notice as amended) relates. The Notice in this case expresses the extradition offence to be the alleged war crime.


case_title: Federal Republic of Germany v Parker (1988) 84 FCR 323


case_text: different stages of the extradition process within the framework of the Act were summarised by the Full Federal Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389. The Full Court observed: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional arrest warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, a provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. By virtue of s 11(1)(a) of the Act, regulations may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations. Relevantly, Hungary is declared to be an extradition country pursuant to regulation 3 of the Regulations. By virtue of s 5 of the Act any country "that is declared by the regulations to be an extradition country" is an "extradition country" for the purposes of the Act.


case_title: Kainhofer v DPP (No 2) (1996) 70 FCR 184


case_text: there is some support to be found for the applicant's earlier written submission in the observations of O'Loughlin and Whitlam JJ in Oates v Attorney-General of the Commonwealth (2002) 118 FCR 544 at [25]. However, even if this submission were made good it could not, in my opinion, affect the result in this case. I have already noted the binding effect of the opinion of the Attorney-General expressed in the Notice, that the applicant is an extraditable person. It was open to the applicant to have sought review under s 39B of the Judiciary Act 1903 (Cth) of the Attorney-General's decision to issue the Notice under s 16(1) of the Act: Kainhofer at pp 538-539. He did not do so.


case_text: a Full Court of this Court held in Papzoglou v Republic of the Philippines (1997) 74 FCR 108 at 140, s 11(6) of the Act makes clear that whatever the proper construction of s 19(2) of the Act, the matters that a magistrate has to consider in proceedings to determine eligibility for surrender under s 19(2) do not include restrictions or limitations arising under a treaty. In my opinion, the same necessarily applies to the application of s 19(1) of the Act. The applicant sought to distinguish the terms of the treaty relied upon in Papzoglou from Article 2 para 5 which is relied upon in this case. He submits that the treaty provision that was sought there to be incorporated in the s 19 process was a treaty provision that required the requested state to take into account the question of whether the extradition of the person would be unjust, oppressive, incompatible with humanitarian considerations, or too severe a punishment. I do not accept this submission, to the effect that s 11(6) is directed only to the operation of s 19(2)(a)-(d). In terms it governs the whole of s 19 and, in particular, is directed to the determination under s 19(1) by the magistrate as to eligibility for surrender of the person in relation to the extradition offence. I observed earlier, at [31]-[32] above, that the written submission of the applicant, concerning the effect of Art 2 para 5 of the Treaty upon the Act, was that it altered the definition of "extradition offence" in s 5 to exclude, in this case, an offence which was not an offence at the time the acts or omissions constituting the offence took place. In oral argument the applicant appeared to focus his submission rather on the effect Art 2 para 5 was said to have upon the matters to be considered by the magistrate under s 19(1) of the Act. Article 2 para 5 of the Treaty may operate in respect to s 16 and may also operate upon the exercise of the discretion of the Attorney-General under s 22(3)(e) of the Act. This is at the fourth phase of the extradition proceedings which are yet to occur: Todhunter v United States of America at p 75; Papzoglou at p 130.


case_title: Republic of South Africa v Dutton (1997) 77 FCR 128


case_title: Snedden v Republic of Croatia [2009] FCA 30


case_text: 11(1C) of the Act provides that for the purposes of sub-s (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that "this Act applies to the country concerned subject to that treaty." By virtue of regulation 4 of the ons, the Act applies in relation to the Republic of Hungary "subject to the Treaty." Regulation 4 provides: "The [Act] applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (a copy of which is set out in the Schedule)." The effect of the regulations is to import the terms of the Treaty into the municipal law: Todhunter v United States of America (1995) 57 FCR 70 at 76. This is subject to the provisions of s 11(6) of the Act. Section 11(6) of the Act provides that for the purpose of determining whether a person is eligible for surrender under s 19(1) "no limitation, condition, qualification or exception otherwise applicable under this section ... has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d)." The hearing before the second respondent was the third stage in these extradition proceedings; that is, a determination under s 19 of the Act as to whether the applicant was eligible for surrender. Article 2 para 5 of the Treaty may operate in respect to s 16 and may also operate upon the exercise of the discretion of the Attorney-General under s 22(3)(e) of the Act. This is at the fourth phase of the extradition proceedings which are yet to occur: Todhunter v United States of America at p 75; Papzoglou at p 130.


case_text: The bases of the appellant's claims to be entitled to a protection visa are set out in detail in the reasons for decision of the Tribunal. They are also summarised in the decision of Scarlett FM: see SZHIB v Minister for Immigration & Anor [2006] FMCA 137. 5 The appellant claims to have been a driver for senior leaders of the Chengbei Industry General Corporation from 1995. In the course of those duties, he became privy to certain views and actions to be taken concerning Mr Guo, a politically active farmer. The appellant became aware that Mr Guo had been or would be falsely incriminated, and consequently the appellant wrote to the People's Court and Procuratorate to let them know the truth. As a result of his actions, the appellant claims to have dismissed from the Chengbei Industry General Corporation in September 1999. He subsequently became a freelance driver after purchasing a second-hand truck. 6 The appellant claims that in January 2003 he became involved in a farmers' union at the behest of Mr Guo and another person by the name of Mr Cong. The farmers' union was known as the Farmer's Self-Supported Association ('the Association'). The appellant says that Mr Guo and Mr Cong requested him to be the public face of the Association because the other men had ongoing problems with the authorities.


case_text: There is, moreover, a second reason for rejecting the appellant's arguments based on s 424A. In my opinion, if any material in the protection visa application was relied upon by the Tribunal as a basis for its findings concerning inconsistencies in the appellant's evidence and its adverse finding on his credibility, that material was republished by the letter accompanying the application to the Tribunal. I have already referred to the content of that letter. The appellant's letter incorporates, in my view, the substantive claims made in the appellant's statutory declaration which supported his application for a protection visa. It follows that the information in the protection visa application became information given by the appellant to the Tribunal within the meaning of subs (3)(b) of s 424A. This view is supported by the authorities: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 ; and SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034.


case_title: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271


case_title: SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034


case_text: Scarlett FM relied upon a third basis for rejecting the appellant's argument based on s 424A. The third basis was that the inconsistencies identified by the Tribunal did not, in his Honour's opinion, constitute 'information' within the meaning of s 424A(1). The first respondent submitted that this ground must now be viewed as incorrect, having regard to the decision of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. For the purposes of this appeal, I need do no more than assume that the first respondent is correct in submitting that the third ground can no longer be correctly advanced, having regard to the decision of the Full Court. It does not follow that Scarlett FM's decision is rendered invalid or erroneous by virtue of a reliance on this third ground. The decision was capable of standing independently on one or other of the two grounds that I have earlier discussed. 25 I turn to consider the appellant's claims based on s 425 of the Act. Section 425 provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review. 26 The appellant appeared to make essentially two points in relation to s 425. The first point was that he was not given a proper opportunity to make oral submissions and set out his entire case in full; rather, he was constantly interrupted by questions from the Tribunal. As a result, the appellant says that he did not get the chance to give his oral evidence completely, and became confused and lost as a result of the Tribunal's questioning. Having carefully read the Tribunal's reasons, I have concluded that the Tribunal did not conduct its proceedings in a way which involved any contravention of s 425. The Tribunal invited the appellant to appear before it to give evidence and present arguments, and the appellant had the opportunity of doing precisely that. Section 425 is not infringed by virtue of the fact that the Tribunal asked many questions of the appellant. In any event, it is clear from the Tribunal's reasons that the appellant was invited to make any submission or argument that he wished at the hearing, having regard to the questions that had been posed by the Tribunal.


case_text: More generally, I should observe that the application before the Tribunal failed essentially because the Tribunal did not accept the appellant's claims, having regard to the findings which it made concerning his credibility. Credibility findings are the function of the primary decision-maker, par excellence, as McHugh J said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 [67] . On appeal from a decision of the Federal Magistrates Court, this Court is not required to embark upon a re-hearing of the facts or the evidence heard by the Tribunal: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] .


case_title: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558


case_text: In his grounds of appeal and written submissions the appellant has made wide-ranging claims which, in the frequent absence of either substantive argument or particularisation, are difficult to consider. I note also that, in many instances, the grounds raised by the appellant either are not referable to the decision of the learned Federal Magistrate, or raise issues which were not before his Honour and therefore require the leave of this Court: NAJT v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51. However to the extent possible I have considered the appellant's claims, and make the following observations: 1. To the extent that the appellant claims Raphael FM erred in considering that either the delegate of the Minister or the Tribunal made an unbiased decision (it is not clear from the grounds of appeal which "decision" the appellant referred to, however I assume the relevant decision was that of the Tribunal as it is that decision Raphael FM was reviewing), I note that this claim is based in a claim by the appellant that the Tribunal ignored relevant evidence and made its findings in the face of contradicting independent evidence. However, as his Honour stated, it was clear that the Tribunal had considered the evidence which was before it. A finding against the appellant on the facts, or ascribing weight to the evidence which is not in the appellant's favour, is not only not bias from the perspective of the Tribunal, but is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 2. It is not possible for me to determine the manner in which the decision of the delegate was an unreasonable and illogical application of the delegate's mind when this claim is not particularised. 3. An unfair procedure of the Tribunal will occur if it makes its determination on the basis of new issues put to the appellant which had not been put by the delegate, and where the Tribunal did not put the appellant on notice that the new issues were "live" issues in its decision-making (cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). In this case however the appellant has not identified the new issues to which his attention was not drawn as "live" issues or upon which he did not have an opportunity to make submissions. 4. In the absence of particularisation, it is not possible to deal with the appellant's claim that he disclosed a reasonable cause of action in relation to the proceedings which was not considered by the Federal Magistrate. 5. I do not accept the submissions of the appellant that either the Tribunal erred in law in determining whether the harm suffered by the appellant amounted to persecution or that the Tribunal failed to address his claims that, having a progressive political opinion and also being a member of the BAP, he would be persecuted if he returned to Bangladesh. A review of the Tribunal's reasons for decision reveals that the Tribunal considered in some detail the claims of the appellant, the information provided by the appellant, and the likelihood that the appellant either had in the past, or would in the future, suffer harm because of his political opinions. 6. In claiming that the Tribunal erred in law in determining whether there were adequate protections from the law enforcement agencies in Bangladesh, the appellant seeks a merits review of the decision of the Tribunal by this Court. This is clearly not permissible. In any event, in finding as a fact that the appellant did not have a well-founded fear of persecution, the Tribunal was not required to determine whether the law enforcement agencies of Bangladesh would provide the appellant in a practical sense or otherwise with adequate protections: cf comments of McHugh J in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 511, Lander J in SVVB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1001 at [22] - [26] . 7. Although the appellant contends that his case was "perfectly identical" to Muin [2002] HCA 30 , in the absence of explanation I am unable to identify the similarity other than the broad fact that both cases involved applications for protection visas. In Muin [2002] HCA 30 , critical issues of procedural fairness were that: • the applicant in that case was not made aware of the substance of relevant documentary information which was received between the time of the delegate's decision and the Tribunal's decision; • the documentation contained adverse material; and • had the applicant been made aware of the substance of that material, he would have taken certain steps which he failed to take. These issues do not arise in the case before me. 8. In relation to the appellant's complaint that the Tribunal did not believe his claims concerning his potential danger, I note that this also raises issues of fact which are the domain of the Tribunal in cases of this nature. The Tribunal is not required, as claimed by the appellant, to investigate his claims through independent sources: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]. Further, his submission that the Tribunal "failed to internalise the circumstantial grounds of (the) review application while considering the claims of (the) review application" is obscure to the point of being meaningless. 9. The appellant contended that the Tribunal made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future, and failed to assess whether the appellant's fears of being persecuted in the reasonably foreseeable future for being a political activist of Bangladesh were well founded. This claim cannot be sustained however in light of: • the view of the Tribunal that it was not satisfied that the appellant had ever suffered any serious harm in the past in Bangladesh as a result of his real or imputed political opinion or for any other reason; • the fact that the Tribunal was not satisfied that the appellant was a leader or activist in the BAP; and • more particularly, in light of the extensive discussion over several pages of the Tribunal's decision concerning the likelihood of future harm to the appellant should he return to Bangladesh. 10. Finally, there is no evidence to support the appellant's contention that the Tribunal acted in bad faith.


case_title: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12


case_text: On 27 February 2007 the appellant filed written submissions which can be summarised as follows: 1. The Tribunal erred in law amounting to jurisdictional error in determining whether the harm suffered by the appellant amounted to persecution. 2. The Tribunal failed to address the claims that, having a progressive political opinion and also being a member of the BAP, he would be persecuted if he returned to Bangladesh. 3. The Tribunal erred in law amounting to jurisdictional error in determining whether there were adequate protections from the law enforcement agencies in Bangladesh. 4. The Tribunal did not follow the proper procedure as required by the Migration Act 1958 (Cth), and the situation in Muin v Refugee Review Tribunal [2002] HCA 30 was "perfectly identical" to this case. In particular, the appellant submitted that the Tribunal's letter to the appellant contained a statement which was identical to the one quoted by the judge in Muin [2002] HCA 30 , and which the High Court said had misled the applicant in Muin [2002] HCA 30. 5. The Tribunal did not believe the appellant's claims concerning potential danger to him in Bangladesh, failed to investigate his claims through independent sources, and heavily depended in their reasoning on generalised facts and findings of the Department of Immigration and Multicultural Affairs. 6. The Tribunal "failed to internalise the circumstantial grounds of (the) review application while considering the claims of (the) review application". 7. The fact that the Tribunal ignored relevant evidence, and its findings in the face of contradicting independent evidence, indicate actual bias. 8. The Tribunal made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future, and failed to assess whether the appellant's fears of being persecuted for being a political activist of Bangladesh were well founded in the reasonably foreseeable future. 9. The Tribunal did not provide the appellant with particulars of information, which formed part of the reasons of the Tribunal's decision, namely that the persecution against the political activist of Bangladesh had subsided. 10. The Tribunal made its decision in bad faith. 13 I note that the appellant also claimed "The RRT has failed to investigate my claims, specifically the grounds of persecution, being a woman in Bangladesh". As the appellant is clearly not a woman, this submission is somewhat mystifying. 14 At the hearing before me the appellant made no oral submissions referable to the appeal. However he made a general plea that the Court look with sympathy at his case, and remit the case to the Tribunal for reconsideration. 16 In his grounds of appeal and written submissions the appellant has made wide-ranging claims which, in the frequent absence of either substantive argument or particularisation, are difficult to consider. I note also that, in many instances, the grounds raised by the appellant either are not referable to the decision of the learned Federal Magistrate, or raise issues which were not before his Honour and therefore require the leave of this Court: NAJT v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51. However to the extent possible I have considered the appellant's claims, and make the following observations: 1. To the extent that the appellant claims Raphael FM erred in considering that either the delegate of the Minister or the Tribunal made an unbiased decision (it is not clear from the grounds of appeal which "decision" the appellant referred to, however I assume the relevant decision was that of the Tribunal as it is that decision Raphael FM was reviewing), I note that this claim is based in a claim by the appellant that the Tribunal ignored relevant evidence and made its findings in the face of contradicting independent evidence. However, as his Honour stated, it was clear that the Tribunal had considered the evidence which was before it. A finding against the appellant on the facts, or ascribing weight to the evidence which is not in the appellant's favour, is not only not bias from the perspective of the Tribunal, but is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 2. It is not possible for me to determine the manner in which the decision of the delegate was an unreasonable and illogical application of the delegate's mind when this claim is not particularised. 3. An unfair procedure of the Tribunal will occur if it makes its determination on the basis of new issues put to the appellant which had not been put by the delegate, and where the Tribunal did not put the appellant on notice that the new issues were "live" issues in its decision-making (cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). In this case however the appellant has not identified the new issues to which his attention was not drawn as "live" issues or upon which he did not have an opportunity to make submissions. 4. In the absence of particularisation, it is not possible to deal with the appellant's claim that he disclosed a reasonable cause of action in relation to the proceedings which was not considered by the Federal Magistrate. 5. I do not accept the submissions of the appellant that either the Tribunal erred in law in determining whether the harm suffered by the appellant amounted to persecution or that the Tribunal failed to address his claims that, having a progressive political opinion and also being a member of the BAP, he would be persecuted if he returned to Bangladesh. A review of the Tribunal's reasons for decision reveals that the Tribunal considered in some detail the claims of the appellant, the information provided by the appellant, and the likelihood that the appellant either had in the past, or would in the future, suffer harm because of his political opinions. 6. In claiming that the Tribunal erred in law in determining whether there were adequate protections from the law enforcement agencies in Bangladesh, the appellant seeks a merits review of the decision of the Tribunal by this Court. This is clearly not permissible. In any event, in finding as a fact that the appellant did not have a well-founded fear of persecution, the Tribunal was not required to determine whether the law enforcement agencies of Bangladesh would provide the appellant in a practical sense or otherwise with adequate protections: cf comments of McHugh J in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 511, Lander J in SVVB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1001 at [22] - [26] . 7. Although the appellant contends that his case was "perfectly identical" to Muin [2002] HCA 30 , in the absence of explanation I am unable to identify the similarity other than the broad fact that both cases involved applications for protection visas. In Muin [2002] HCA 30 , critical issues of procedural fairness were that: • the applicant in that case was not made aware of the substance of relevant documentary information which was received between the time of the delegate's decision and the Tribunal's decision; • the documentation contained adverse material; and • had the applicant been made aware of the substance of that material, he would have taken certain steps which he failed to take. These issues do not arise in the case before me. 8. In relation to the appellant's complaint that the Tribunal did not believe his claims concerning his potential danger, I note that this also raises issues of fact which are the domain of the Tribunal in cases of this nature. The Tribunal is not required, as claimed by the appellant, to investigate his claims through independent sources: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]. Further, his submission that the Tribunal "failed to internalise the circumstantial grounds of (the) review application while considering the claims of (the) review application" is obscure to the point of being meaningless. 9. The appellant contended that the Tribunal made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future, and failed to assess whether the appellant's fears of being persecuted in the reasonably foreseeable future for being a political activist of Bangladesh were well founded. This claim cannot be sustained however in light of: • the view of the Tribunal that it was not satisfied that the appellant had ever suffered any serious harm in the past in Bangladesh as a result of his real or imputed political opinion or for any other reason; • the fact that the Tribunal was not satisfied that the appellant was a leader or activist in the BAP; and • more particularly, in light of the extensive discussion over several pages of the Tribunal's decision concerning the likelihood of future harm to the appellant should he return to Bangladesh. 10. Finally, there is no evidence to support the appellant's contention that the Tribunal acted in bad faith.


case_title: NAJT v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51


case_title: SVVB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1001


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