case_text: In relation to these grounds Jarrett FM found in summary: 1. The conclusion that the Tribunal officer came to in his reasons for decision was that he was not satisfied that the onus upon the appellant had been discharged by her, which was a view that the Tribunal officer was entitled to take. Further, even if it were the case that the Tribunal officer's finding was against the weight of the evidence before him or her, and might be said to be a perverse finding of fact, it did not amount to an error of law, let alone jurisdictional error [25]-[26]. His Honour referred to comments of Kirby J in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 218 ALR 733 at [67] in relation to this proposition. 2. In relation to alleged irrelevant considerations: a. the appellant's partner's financial circumstances was not an irrelevant consideration; b. in a decision that concerns the capacity of the appellant to pay a fee, her assertions as to her employment status, either at the time of the application or soon thereafter, were plainly relevant. 15 Accordingly, his Honour dismissed the application. 16 There are two grounds of appeal before the Court. 17 First, in her notice of appeal filed 29 August 2006 in this Court, the appellant claimed that "the Federal Magistrate failed to find a jurisdictional error when the initial decision by the Tribunal was made with jurisdictional error". As of 29 August 2006 the reasons for decision of Jarrett FM had not been made available, and the solicitors for the appellant indicated that particulars of the error of jurisdiction would be provided at a later date. The appellant subsequently provided the following particulars: • "The Federal Magistrate erred in not deciding that the decision of the Tribunal was unreasonable. • All the evidence before the Tribunal was that the appellant was penniless. • The Tribunal found that because the appellant had not complied with a non-regulatory policy through not producing a specific set of documents (not required by regulation) that she was therefore not going to suffer severe financial hardship as a result of paying the filing fee (of $1,400). (The list of documents in the policy does not even purport to be an exhaustive list). • In the circumstances, the decision of the Tribunal was unreasonable. • In this regard, the Federal Magistrate, in paragraph 25 of the reasons, justified the decision of the Tribunal by simply stating that the Tribunal has determined that the review applicant (the appellant) had not discharged her onus of proof. • But the Tribunal did not dismiss the appellant's application for a fee waiver because she failed to discharge any onus of proof, the Tribunal went impermissibly further by stating that the absence of certain documents meant that the Tribunal could make an actual finding that the review applicant would not suffer severe financial hardship. • Further the Tribunal took into account an irrelevant consideration, namely the absence of evidence of the estranged spouse's financial circumstances yet there was no finding either at the primary (Department) level or at the Tribunal stage that there was any financial support from the estranged spouse and no evidence that the appellant was in a position to provide evidence of the financial circumstances of the estranged spouse. • The Tribunal failed to perform its statutory function under reg 4.13(4) Migration Regulations and as a result its decision was in excess of jurisdiction." 18 Second, at the hearing before me, Mr Boccabella for the appellant sought leave to add a further ground of appeal based on s 347(1) of the Act, which provides that an application for review of an MRT-reviewable decision must be in approved form, given to the Tribunal within the prescribed period, and be accompanied by the prescribed fee (if any). This ground of appeal is that the appellant has not been given proper notice of a decision, and is entitled to a reasonable period after proper notice has been given (which has not yet occurred) to have an opportunity to pay the prescribed fee.


case_outcome: applied

case_text: In summary the first respondent submitted the following: • it is yet to be established whether or not a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia. In any event, the Federal Magistrate was satisfied that the conclusion reached by the Tribunal officer was a view which was reasonably open. This is correct and there is no prospect of Wednesbury unreasonableness, even assuming that Wednesbury unreasonableness does provide a separate ground of review • the primary submissions of the appellant as to the alleged failure of the Tribunal to take into account a relevant consideration, or taking into account an irrelevant consideration which it was bound not to take into account, is in reality an attack on the merits of the decision. There is no error of law, let alone a jurisdictional error, in making a wrong finding of fact. It is not the function of a court to substitute its own decision for that of the administrator by exercising a discretion that the legislature has vested in the administrator: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-40 • the evidence of the estranged partner's financial contribution was clearly a relevant consideration in the context in which the decision-maker was making his decision. The appellant had applied for a Partner Visa based upon her de facto relationship with the estranged partner • it is permissible for the Tribunal to develop a form which sets out the matters it regards as relevant, provided the Court is satisfied that they are not clearly irrelevant • the task of the Tribunal's delegate on the application of the appellant was to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. The findings made by the Tribunal's delegate were not only reasonably open on the evidence presented to him but were findings which he was required to make. The appellant's submission to the contrary is without foundation • whether the decision is a "good" decision or not is not the point - the question is whether it is officiated as a jurisdictional error • the facts of this case are not similar to those in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court held that the Tribunal had disregarded documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated • the evidence of the estranged spouse's financial contribution was clearly a relevant consideration in the context of an application for a Partner Visa based on a de-facto relationship with the estranged spouse • there is no statutory obligation to notify the appellant in any particular way, and no suggestion that the letter was not sent to the appellant's authorised recipient at the correct address. Although Mr Donohue may have been the "authorised officer" in relation to making the decision within the Regulations, Mr Hajaj was authorised to send the letter containing the decision. Nothing turns on the fact that the name "Manal Hajaj" appeared above "authorised officer" in letter to appellant • in relation to the form of notification of the Tribunal's decision to the appellant, Mr Bickford relied on the decision of Kiefel J in Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 817 where the applicant was before the Tribunal. In that case, although the applicant had previously been represented by solicitors, the hearing was conducted in the presence of the applicant, her brother and an interpreter. The Tribunal attempted to contact the applicant several days after the hearing to inform her of the decision, but was advised by the solicitors that they no longer acted for the applicant, and gave the Tribunal the last known telephone number and address of the applicant. It appears that the Tribunal contacted the applicant's brother by telephone and advised him orally of the decision on 21 August 2001. The applicant claimed that she was not notified of the decision until almost four months later. Kiefel J held that the applicant's brother was not her representative, and that advice to the applicant's brother was not notification to the applicant within the meaning of s 368D of the Migration Act . The applicant was first notified of the decision four months later, when she herself received a copy of the decision of the Tribunal, and that time began to run for an appeal from that point. However her Honour also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, and held that the form of notification did not invalidate the actual decision of the Tribunal itself, because it did not follow either expressly or impliedly from construction of the Migration Act that such a consequence would follow (at [11]) • the significance of the decision of the Full Court in Braganza [2001] FCA 318 ; 109 FCR 364 is that in that case their Honours held that where an application for review of the Minister's decision and a request for fee waiver are made within the period prescribed by s 347(1) Migration Act , the Tribunal had jurisdiction to consider the application for review provided that the application to set aside the Minister's decision is valid if made within the prescribed period and the fee is eventually paid or paid within a reasonable time after the waiver application is rejected (in particular at 375). 37 The manner in which this letter was framed was clearly irregular. If the letter purported to be from the actual decision-maker, who was an authorised officer within the meaning of Migration reg 4.13, it should have been drafted in such terms that it be from Mr Donohue himself. However, notwithstanding this irregularity with respect to the manner in which the decision was communicated to the appellant, in my view the validity of the decision itself is not compromised. A decision that the prescribed fee not be waived was made by a person authorised to do so in the Tribunal. The Tribunal communicated that decision to the appellant. My attention has been directed to no provisions in the Migration Act which require the decision of an authorised person to be communicated to the appellant by that authorised person. I agree with the submission of Mr Bickford that an analogy may be drawn with the decision of Kiefel J in Sochorova [2002] FCA 817 to the effect that that such a consequence does not follow either expressly or impliedly from construction of the Migration Act . 38 As Mr Boccabella submitted, the facts before the Tribunal pointed to the appellant being of very limited financial means, and a person for whom payment of the prescribed fee would cause severe financial hardship. However whether payment of the fee would cause the appellant severe financial hardship was a decision for the Tribunal on the facts and material before it. In the absence of jurisdictional error, the decision cannot be disturbed by this Court. Accordingly, the appeal must be dismissed. THE COURT ORDERS THAT: 1. The appeal be dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 28 November 2007 Counsel for the Appellant: L Boccabella Solicitor for the Appellant: AJ Torbey & Associates Counsel for the Respondent: P Bickford Solicitor for the Respondent: Clayton Utz Date of Hearing: 21 February 2007 Date of Judgment: 28 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1857.html


case_outcome: cited

case_text: In summary the first respondent submitted the following: • it is yet to be established whether or not a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia. In any event, the Federal Magistrate was satisfied that the conclusion reached by the Tribunal officer was a view which was reasonably open. This is correct and there is no prospect of Wednesbury unreasonableness, even assuming that Wednesbury unreasonableness does provide a separate ground of review • the primary submissions of the appellant as to the alleged failure of the Tribunal to take into account a relevant consideration, or taking into account an irrelevant consideration which it was bound not to take into account, is in reality an attack on the merits of the decision. There is no error of law, let alone a jurisdictional error, in making a wrong finding of fact. It is not the function of a court to substitute its own decision for that of the administrator by exercising a discretion that the legislature has vested in the administrator: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-40 • the evidence of the estranged partner's financial contribution was clearly a relevant consideration in the context in which the decision-maker was making his decision. The appellant had applied for a Partner Visa based upon her de facto relationship with the estranged partner • it is permissible for the Tribunal to develop a form which sets out the matters it regards as relevant, provided the Court is satisfied that they are not clearly irrelevant • the task of the Tribunal's delegate on the application of the appellant was to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. The findings made by the Tribunal's delegate were not only reasonably open on the evidence presented to him but were findings which he was required to make. The appellant's submission to the contrary is without foundation • whether the decision is a "good" decision or not is not the point - the question is whether it is officiated as a jurisdictional error • the facts of this case are not similar to those in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court held that the Tribunal had disregarded documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated • the evidence of the estranged spouse's financial contribution was clearly a relevant consideration in the context of an application for a Partner Visa based on a de-facto relationship with the estranged spouse • there is no statutory obligation to notify the appellant in any particular way, and no suggestion that the letter was not sent to the appellant's authorised recipient at the correct address. Although Mr Donohue may have been the "authorised officer" in relation to making the decision within the Regulations, Mr Hajaj was authorised to send the letter containing the decision. Nothing turns on the fact that the name "Manal Hajaj" appeared above "authorised officer" in letter to appellant • in relation to the form of notification of the Tribunal's decision to the appellant, Mr Bickford relied on the decision of Kiefel J in Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 817 where the applicant was before the Tribunal. In that case, although the applicant had previously been represented by solicitors, the hearing was conducted in the presence of the applicant, her brother and an interpreter. The Tribunal attempted to contact the applicant several days after the hearing to inform her of the decision, but was advised by the solicitors that they no longer acted for the applicant, and gave the Tribunal the last known telephone number and address of the applicant. It appears that the Tribunal contacted the applicant's brother by telephone and advised him orally of the decision on 21 August 2001. The applicant claimed that she was not notified of the decision until almost four months later. Kiefel J held that the applicant's brother was not her representative, and that advice to the applicant's brother was not notification to the applicant within the meaning of s 368D of the Migration Act . The applicant was first notified of the decision four months later, when she herself received a copy of the decision of the Tribunal, and that time began to run for an appeal from that point. However her Honour also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, and held that the form of notification did not invalidate the actual decision of the Tribunal itself, because it did not follow either expressly or impliedly from construction of the Migration Act that such a consequence would follow (at [11]) • the significance of the decision of the Full Court in Braganza [2001] FCA 318 ; 109 FCR 364 is that in that case their Honours held that where an application for review of the Minister's decision and a request for fee waiver are made within the period prescribed by s 347(1) Migration Act , the Tribunal had jurisdiction to consider the application for review provided that the application to set aside the Minister's decision is valid if made within the prescribed period and the fee is eventually paid or paid within a reasonable time after the waiver application is rejected (in particular at 375).


case_text: Second, the Draft Report has no impact on rights and is not a reviewable decision because it is neither final nor operative, nor is it substantive in character: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. The preparation of the Draft Report is not reviewable as 'conduct' engaged in for the purposes of making a decision in circumstances where it is superseded by a final and operative decision that is reviewable, that is, the Committee's Final Report: Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1.


case_text: Third, at the time when the Draft Report was prepared, the Act contained no statutory requirement that it contain reasons. Subsection 106KD(1A), which provides that 'a draft report must set out the reasons for the preliminary findings' did not come into force until 1 January 2003. It does not apply to the present case see Item 118(1) Schedule 1, Health Insurance Amended (Professional Services Review and Other Matters) Act 2002 (Cth). Section 25D of the Acts Interpretation Act 1901 (Cth), which operates only where there is such a statutory requirement, did not apply to the Draft Report. Dr Mathews' contention to the contrary was rejected in Dimian v Health Insurance Commission [2004] FCA 1615 at [78] [80] per Jacobson J. I agree with his Honour's view. 16 In any event, this ground cannot be sustained because the Draft Report does contain reasons see ground 4 below. 17 Ground 4 is as follows: ' [The Committee] failed to observe procedures that it was required to observe by law (ADJR Act, s 5(1)(b) or 5 (1)(e)), in the making of its Final Report in that it failed to make or set out: (a) Findings or sufficient findings on material questions of fact; and it (b) Failed to refer to the evidence upon which those findings were based (the Act, s 106L and Acts Interpretation Act 1901 , s 25D) and/or it (c) Failed to expose its reasons or sufficient reasons for making its ultimate conclusions.'


case_outcome: referred to

case_text: The majority in Yung (Burchett and Hill JJ) did not comment on the Committee's obligations under s 106L, but in Lee v Maskell-Knight [2004] FCAFC 2 ; (2003) 207 ALR 362 at [43] , Hill and Marshall JJ quoted Beaumont J's remarks with apparent approval. Heerey J also commented on s 106L in Mercado v Holmes [2000] FCA 620 , overturned on appeal at [2000] FCA 1848 ; (2000) 111 FCR 160, but without any disapproval of this comment: '... the task of the Committee is not to make a finding as to the occurrence or otherwise of a specific event but, pursuant to s 106L, to express an opinion in generalised and conclusionary terms by reference to a subjective and value-laden criterion, namely what members think the general body of general practitioners would think about the conduct in question: s 82(1)(a).'


case_text: For the respondents it is submitted that 'inappropriate practice' is defined in s 82(1) of the Act relevantly as 'conduct ... such that a Committee could reasonably conclude that ... the conduct would be unacceptable to the general body of general practitioners'. The Committee addressed itself to the correct test [36] of the Final Report. It 'applied its combined professional expertise' [37] of the Final Report. As an expert body, it was entitled and expected to do so: Tankey v Adams [2000] FCA 1089 ; (2000) 104 FCR 152 at [107] ; Minister for Health v Thomson (1985) 8 FCR 213 at 217 and 224.


case_title: Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1


case_text: The Committee was required to prepare a Draft Report setting out its preliminary findings subs 106KD(1) of the Act. It was submitted that the fact that those views were unfavourable to Dr Mathews is not, of itself, evidence of bias or pre-judgment: see Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [11] . That is undoubtedly correct. 32 The Committee discussed Dr Mathews' submissions on the Draft Report in the Final Report at [95] [100]. It declared at [96] that after careful consideration of the submissions, it was not persuaded to change its finding that Dr Mathews engaged in inappropriate practice in relation to the referred services. Dr Mathews characterises his submissions as 'careful, detailed and reasoned' and the amendments which the Committee made in its Final Report as 'grudging and minor', but it was submitted that the use of emphatic language, without more, is unhelpful. It was further submitted that, in essence, Dr Mathews' contention is that a finding of apprehended bias should be made merely because the Committee did not accept the changes to the Draft Report which he proposed. In my view, there is substance in that submission. 33 Dr Mathews selected four examples to demonstrate the alleged pre-judgment. These were summarised in the respondents' written outline of submissions as follows: ' (a) Appendix 1, service no. 4 At the Committee hearing on 30 October 2003 the applicant told the Committee that he referred the patient to an allergy specialist, ordered an IGE test, thinks he performed a spirometry test and that "the management plan for her was Ventolin." In the Draft Report the Committee said inter alia that there was insufficient evidence of the development or implementation of an adequate management plan for the patient's presenting problem. The applicant said in his submission on the Draft Report: "I do not accept this reason. I referred the patient to an allergy specialist; ordered an IGE pathology test and performed a spirometry test. I had also been prescribing her Ventolin. In my submission that must fall within the range of what is an acceptable management plan. In its Final Report, the Committee repeated the finding that it had made in the Draft Report. (b) Appendix 2, service no. 1 At the Committee hearing on 31 October 2003, the applicant told the Committee that he did not remember the consultation. At the Committee's request, he read out his clinical note: "Vomiting, Promethazine, 4 u.e., urea, electrolytes and creatinine which is in those days I think they were bundled in together with a liver function test in those days I think." In its Draft Report, the Committee said inter alia that "At this home visit there was no selective history or ongoing management plan recorded in response to this 40 year old patient presenting with a migraine headache." The applicant said in his submission on the Draft Report: "I did record a selective history of "vomiting". I knew from the visit the previous day that the patient was suffering from migraine. There was a management plan recorded which was to give the patient an injection of Promethazine and I advised her to undergo further tests to check her liver function, kidney function and the state of her hydration." In its Final Report, the Committee repeated the finding that it had made in the Draft Report. (c) Appendix 2, service 3 At the Committee hearing on 31 October 2003, the applicant told the Committee that he did not remember the consultation. He read out his clinical note: "FOC, Ceclor CD, Ventolin and Becloforte. In answer to a question about whether he performed a peak-flow reading, he said: "I did not perform a peak flow reading, it is not written down. I do not know whether I did. Sometimes yes I did but it is not written down there so I do not recall. In its Draft Report, the Committee said inter alia that "At this home visit there was no selective history or ongoing management plan recorded in response to this 15 year old patient who had a flare up in his chest. No peak flow reading was performed on this young patient who had a history of asthma." The applicant said in his submission on the Draft Report: "I did record a selective history with my shorthand notation 'FOC'. The patient's history of asthma and smoking was known to me. I did record my management plan which was to prescribe Ceclor for his chest infection; Ventolin and Becloforte for the patient's asthma. The evidence does not indicate that a peak flow reading was not performed and in my submission the Committee cannot make such a finding (see T p 26 line 31 ff)." In its Final Report, the Committee repeated the finding that it had made in the Draft Report. (d) Appendix 3, service 15 At the Committee hearing on 31 October 2003, the applicant told the Committee that: "I gave him the Ducene in an attempt to reduce his alcohol consumption and because of the anxiety associated with living with his partner, Christine, who was an invalid. So in a fashion he was a carer, and as I said, his legs he had been my patient for probably 15 years." The applicant also told the Committee that: "The presenting complaint with Ron was that he was had massive anxiety because he was worried about Christine and his knees there is a note before approximately 6 or 8 weeks before, that his knees and his lumbar sacral spine, because when Christine fell over he would have to pick her up, and as I said he has I have asked him to have his knees x-rayed many, many times. He has never had it x-rayed. He is non-compliant. In its Draft Report, the Committee said inter alia: "No evidence that this service was other than a simple problem requiring minimal input, limited examination and management. In Dr Mathew's oral evidence he stated that he wrote a prescription for Ducene for the pain to damaged knees." The applicant said in his submission on the Draft Report that: "I do not agree with this view of the consultation. At T p 49 line 32, I said that I gave Ducene in an attempt to reduce the patient's alcohol consumption, not for pain. My oral evidence indicates that this was not a straightforward consultation having regard to the underlying social problems within the patient's household. The patient's knees have been a matter of ongoing concern for some time." In its Final Report, the Committee repeated the finding that it had made in its Draft Report.' (Footnotes omitted) 38 Pursuant to subs 106K(3), the Minister made Health Insurance (Professional Services Review Sampling Methodology) Determination 2000 (No. 1) ('the Sampling Determination'), which provides, inter alia : ' Part 1 Preliminary 1 ... 2 ... 3 Purpose This Determination specifies the content and form of a sampling methodology that may be used by a Committee in making findings for an adjudicative referral. 4 Application (1) This Determination applies if the Committee decides, in respect of conduct in connection with rendering or initiating the services included in a particular class of the referred services, to have regard only to a sample of the services included in the class. (2) The sampling methodology in Part 2 applies to: (a) individual items and multiple item episodes in classes of services; and (b) individual items and multiple item episodes in classes of patients. 5 Definitions In this Determination: Act means the Health Insurance Act 1973 . class size , in relation to a sample, means the number of services rendered or initiated in the particular class of referred services from which a sample is chosen. exploratory sample has the meaning given in section 8. final random sample has the meaning given in section 10. preliminary random sample has the meaning given in section 6. Note 1 The following terms that are used in this Determination are defined in subsection 3 (1) of the Act: • Initiate • Patient. ... Part 2 Sampling methodology 6 Preliminary random sample In having regard, under subsection 106K (1) of the Act, only to a sample of the services included in a particular class of referred services, a Committee must ensure that the sample (the preliminary random sample ) is a random sample. 7 Appropriate sample size (1) The preliminary random sample must be of an appropriate sample size to enable prediction with 95% confidence that the percentage of services constituting inappropriate practice worked out from the sample is within +/- 10% of the actual percentage of inappropriate services rendered or initiated in the class of referred services sampled, at a hypothesised incidence of inappropriate practice of 50% of services rendered or initiated (the incidence requiring the largest sample). (2) For a class of services specified in a referral, the appropriate sample size of the preliminary random sample is at least: N __________ 1+0.01(N-1) where: N = class size. (3) If the appropriate sample size worked out is not a whole number, it must be rounded up to the next whole number. 8 Exploratory sample In making a finding based on statistical sampling, the Committee must: (a) examine a sample, preferably of 30 or more services (but not less than 25 services) (the exploratory sample ) , randomly drawn from the preliminary random sample; and (b) determine whether or not each of those services constitutes inappropriate practice. 9 Percentage of inappropriate practice in exploratory sample (1) After the Committee has determined which of the services in an exploratory sample constitute inappropriate practice, it must work out the percentage of services in the sample that constitutes inappropriate practice. (2) The percentage must be expressed as a whole number (being, if necessary, rounded down to the nearest whole number). 10 ...' 39 Paragraphs (a), (b) and (c) of ground 8 as pleaded are not in issue. Paragraph (d) contains the first allegation of error. Dr Mathews contends that the terms of s 6 of the Sampling Determination, in particular the words 'must ensure', when used in relation to the words 'that the sample (the preliminary random sample) is a random sample', effectively requires the Committee to undertake the sampling itself. Alternatively, it is said that if s 6 does not require the Committee to do the sampling itself, it requires the Committee to ensure for itself that a sample of the services, included in a particular class of selected services, is a random sample and that this cannot be satisfied where the Committee merely relies on a list of services of a particular class, derived from a larger list of services of that particular class, 'fed' to them by the Director, even if the Committee has no reason to think that the larger list of services of that particular class is not a random sample. 40 The primary submission can be rejected out of hand. On no construction of s 6 of the Sampling Determination can it be said that it requires the sampling to be carried out by the Committee itself.


case_text: The question which arises is whether this error invalidates the Committee's finding at [2] of its Final Report, namely, that the conduct of Dr Mathews in connection with rendering MBS Item 23, 24 and 193 services that were the subject of Adjudicative Referral 223 was, in the Committee's opinion, unacceptable to the general body of general practitioners and constituted inappropriate practice as defined in s 82 of the Act. In my view it does and for the following reasons: 1. The importance of complying with the sampling methodology in the Sampling Determination is borne out by all the provisions of s 106K of the Act, but in particular the deeming operation of subs 106K(2) and the fact that the Committee is, by subs 106K(4), prohibited from using a sampling methodology that is not specified in a determination made under subs 106K(3), unless it is ordered by a statistician accredited by the Statistical Society of Australia that the sampling methodology is statistically valid. 2. The opening words of s 8 of the Sampling Determination make it clear that its requirements are mandatory: 'In making a finding based on statistical sampling, the Committee must ...'. 3. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, the majority rejected (at 389 391, [92] [93]) the traditional distinction between 'mandatory' and 'directory' requirements, saying that: '[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'. In determining the purpose of the legislation, regard has to be had to 'the language of the relevant provision and the scope and object of the whole statute'. 4. Nevertheless, having regard to the mandatory terms of s 8 of the Sampling Determination and its importance in the process of statistical sampling upon which the Committee's finding is ultimately made, I am of the view that it is a purpose of the Sampling Determination that a finding made in reliance on an act done in breach of s 8 of the Sampling Determination is an invalid finding: See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 per McHugh J at [72] [73]; per Hayne J at [205].


case_text: With respect, I also have difficulty with this ground of review. Indeed, counsel for Dr Mathews accepted that there is no 'general law' requirement that administrative decision-makers must give reasons: Public Service Board v Osmond [1986] HCA 7 ; (1985) 159 CLR 656. In that case, it was acknowledged by Gibbs CJ (at 670) and by Deane J (at 676) that there may be 'special circumstances' where natural justice requires reasons to be given, however, only one instance was cited in which 'special circumstances' have been found in the intervening period. This suggests that 'special circumstances' are particularly rare. 24 On behalf of Dr Mathews, it was submitted that the legislative context in the present case gives rise to such 'special circumstances'; the statutory provision regarding the drawing and provision of a draft report and permitting further submissions on it from an applicant would be meaningless unless the reasoning were to be exposed both as a necessary matter of statutory construction and as a matter of procedural fairness to Dr Mathews. Whether or not this is so, it was submitted on behalf of the respondents that the Committee did give reasons in its Draft Report see ground 4 above and it is idle to suggest that an applicant who is able to produce submissions responding to virtually every sentence in the Draft Report was not informed about the reasoning process which the Committee had adopted. I agree with this submission. 25 Ground 5 is as follows: ' [The Committee's] Draft and Final Reports, considered together, give rise to a reasonable apprehension of bias, in that a fair-minded lay-person, properly informed as to the nature of the proceedings and the matters in issue, who is aware of the evidence and submissions in the proceedings, including the further evidence provided by [Dr Mathews] after the hearing, would consider that [the Committee] was biased against [Dr Mathews] , in the sense that their mind was closed to the issues raised by [Dr Mathews] and nothing [Dr Mathews] said after the preparation of the Draft Report could have changed the view that [the Committee] had taken about [Dr Mathews'] case.' 26 The Application contains the following particulars with respect to this ground of review: '(i) Nowhere in the appendices to the Final Report, in which the purported reasons for the material findings were outlined, is there any express acknowledgment of the further written evidence of [Dr Mathews] . (ii) But for formal acknowledgement that the submissions and evidence were received, and several minor modifications, no change to the findings or reasons for findings is made as a result of the further written evidence of [Dr Mathews] . (iii) [Dr Mathews'] oral evidence, accepted with little comment at the hearing, is barely referred to in either the body of the report or the appendices. (iv) [The Committee] failed to undertake its own random sampling in accordance with s 106K of the Act, relying instead on a pool of samples drawn by [HIC] and already examined in detail by the [Director] (in his investigation prior to the Adjudicative Referral) and already found by him (or his officers, servants and agents) to have been sufficiently deficient and/or adverse to [Dr Mathews] to cause him to refer the matter to [the Committee] . The pool was accordingly, no longer a random sample by any definition of that expression.' 27 Dr Mathews submits that the Final Report contains only the most grudging and minor amendments (styled by the Committee as 'clarification' see [98] of the Committee's Final Report), makes no acknowledgement of Dr Mathews' further evidence, and, in the main, ignores Dr Mathews' submissions entirely and is, for those reasons, affected by apprehended bias.


case_title: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162


case_text: I agree with the submissions of counsel for the respondents that the Committee treated the deficiencies which it found in Dr Mathews' records as one only of the relevant factors which it took into account when making findings of inappropriate practice in respect of each of the three MBS item services. It did indeed treat adequate record keeping as a component of the clinical input necessary for proper treatment of the patient and that approach is consistent with the approach adopted by this Court in Tisdall v Health Insurance Commission [2002] FCA 97 at [82] where Tamberlin J said: 'It is evident from the language of the Final Report that the Committee did not treat the failure to keep records, for example, in itself sufficient justification to arrive at its findings. Rather, the Committee took this into account as a relevant factor and in my opinion, it was entitled to adopt this approach and to enquire into this matter.' I agree with his Honour's approach. 79 For the foregoing reasons, this ground of appeal cannot be sustained. 80 It follows from the foregoing that the Committee's finding at [2] of its Final Report is invalid because it is predicated upon the Committee's failure to observe the sampling methodology of the Sampling Determination, in particular, the provisions of s 8. In the circumstances, the appropriate declaration and orders are that: 1. The Committee's Final Report be declared invalid. 2. Adjudicative Referral No. 223 be set aside. 3. The matter be remitted to the Director with a direction that he establish a differently constituted committee to determine the reference to Adjudicative Referral No. 223 according to law. 4. The first, second and third respondents pay the applicant's costs. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 10 March 2006 Counsel for the Applicant: Mr M Robinson Mr C Jackson Solicitor for the Applicant: TressCox Counsel for the Respondents: Ms R M Henderson Solicitor for the Respondents: Minter Ellison Date of Hearing: 22 August 2006, 14 September 2006 Date of Judgment: 10 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/195.html


case_text: In relation to this ground, I was referred to what was said by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [28] as to the proper test to be applied for apprehended bias in the case of administrative proceedings held in private. To fully appreciate what their Honours there said, one needs to refer also to the surrounding context of [27] [31] inclusive: ' [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. [29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. [30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented -- often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. [31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. 29 There is no submission on behalf of Dr Mathews in relation to this ground of apprehended bias that he was overborne or intimidated by vigorous testing of his evidence and frank exposure of its weaknesses at the hearing before the Committee such as to lead a fair-minded lay observer or a properly informed lay person to infer that there is no evidence he could give which could change the Committee's view. The only basis of this ground is put in terms of [27] supra. 30 It was submitted on behalf of the respondents that Dr Mathews' contention that the Committee ought to have had regard to unspecified 'further evidence' allegedly incorporated in his submissions on the Draft Report should be rejected. It was submitted that while Dr Mathews was entitled to make '... written submissions suggesting changes to the Draft Report ...', he was not entitled to give evidence see subs 106KD(3) of the Act.


case_title: Mercado v Holmes [2000] FCA 620


case_outcome: followed

case_text: Second, the grounds are in substance an impermissible attempt to propel both the Federal Magistrate and this Court into a review of the factual merits of the decision of the Tribunal. It is the Tribunal which has been entrusted by the legislature with the task of resolving factual matters: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 ; (1986) 86 FCR 547 at 558. The task of the Federal Magistrates Court is that conferred by s 476 of the Migration Act 1958 (Cth). The weight to be given to particular aspects of the claim being advanced is generally a matter for the Tribunal alone: Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J.


case_text: First, to the extent that the grounds assert a failure to take into account considerations which are said to be relevant to the decision that was made, they are not considerations which the Tribunal was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39 per Mason J. 17 Second, the grounds are in substance an impermissible attempt to propel both the Federal Magistrate and this Court into a review of the factual merits of the decision of the Tribunal. It is the Tribunal which has been entrusted by the legislature with the task of resolving factual matters: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 ; (1986) 86 FCR 547 at 558. The task of the Federal Magistrates Court is that conferred by s 476 of the Migration Act 1958 (Cth). The weight to be given to particular aspects of the claim being advanced is generally a matter for the Tribunal alone: Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J.


case_text: A further aspect of procedural fairness potentially arises by reason of an alleged failure to comply with s 424A(1) of the Migration Act 1958 (Cth). No Ground of Appeal seems to raise any such alleged non-compliance. But that was a ground raised before the Federal Magistrate and rejected. Although not raised in the Notice of Appeal , the contention emerged in the written Outline of Submissions as filed in this Court by the Appellant. Those submissions contended that there had been a breach of s 424A(1) by the non-provision to the now Appellant of " the country information it had about Kerala and India ". As explained by the Federal Magistrate, s 424A(3) provides that such information does not fall within s 424A(1). That " information ", as is apparent from the reasons of the Tribunal, was not " about " the now Appellant: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [23] [26] per Tamberlin, Finn and Besanko JJ; Minister for Immigration & Citizenship v SZHXF [2008] FCAFC 36 at [18] [22] per Tamberlin, Gyles and Stone JJ.


case_text: One Ground of Appeal asserts a failure to accord procedural fairness. Reliance is placed upon Muin v Refugee Review Tribunal [2002] HCA 30 , 76 ALJR 966 , a decision which the Appellant maintains is " identical " to his own. 21 The Notice of Appeal goes on to state: ... My case is identical to Muin contending a want of procedural fairness in two respects. Muin had been misled into believing that the Tribunal had read some information, which had been in part B documents; and the Tribunal had not drawn to his attention some material adverse to his claims so as to enable him to comment upon them. It is the first of those contentions, which is relevant here. 22 In Muin the applicants had been led to believe that the Tribunal had certain documents -- called the Part B documents -- which had been before the delegate. Those documents were not before the Tribunal. A majority of the High Court concluded that there had been a denial of procedural fairness. Hayne J referred to an agreed statement of facts and concluded: [256] ... The consequence of what has been agreed between the parties to each of the present actions is that each plaintiff was led to believe, by what the Tribunal said, that it had material relevant to that plaintiff's claim which it did not. [257] The agreed facts are silent about whether the Tribunal was aware of the information and opinions contained in the PtB documents. It may have been, but more importantly, it may not. It follows, therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the Tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the Tribunal. Moreover, it also follows from the parties' agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the Tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs' cases. It did not give each plaintiff the opportunity to make the submissions or give the evidence which the plaintiff wished to make and give. For these reasons, Question 1 of the questions reserved should, in each case, be answered "yes". Gummow J (at [171]) and Kirby J (at [194]) agreed with Hayne J. Gaudron J also agreed that there had been a denial of procedural fairness. 23 One difficulty confronting the Appellant in the present proceedings is not the principle for which Muin is authority; the Appellant's difficulty is the application of Muin to the circumstances of the present appeal. 24 The material before the delegate is set forth in his decision dated 11 December 2006. The material that was before the Tribunal is also set forth in its reasons for decision. There was no identification by the Appellant of those documents which he contended should have been before the Tribunal but were not. Generalised assertions as to a denial of procedural fairness and a citation of the decision in Muin does nothing to assist this Court in the resolution of a challenge to a decision of the Tribunal: SZJMU v Minister for Immigration & Citizenship [2007] FCA 1344 at [16] per Mansfield J. 25 A further difficulty confronting the Appellant in his reliance upon Muin is the fact that this ground was also not raised before the Federal Magistrate for resolution. Again, it is a ground apparently inserted consequent upon the meeting with the migration agent. Again, leave to raise this as a Ground of Appeal is refused. 36 An instance of such indiscriminate repetition of grounds advanced in other proceedings into the circumstances of the present appeal is, it is considered, exposed by the Appellant's reliance upon the decision in Muin. The documents which were not before the Tribunal in that case and which occasioned the denial of procedural fairness had been there identified as " the PtB documents ". But there were no comparable documents identified in the present appeal which were said to have been not before the Tribunal and thereby denying the now Appellant of procedural fairness.


case_text: One ground, however, asserts that the Federal Magistrate failed to apply " the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 ". 8 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 was a decision of the Full Court which concerned whether a person was a refugee who could reasonably relocate within his own country. Black CJ, at 440 1, concluded in part as follows: The appellant's primary argument must be rejected. Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders. Whitlam J agreed. The conclusions of the Chief Justice were further considered by the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40 at [10] , [2007] HCA 40 ; 237 ALR 634 at 636 per Gummow, Hayne and Crennan JJ. Their Honours there accepted that the basic test is whether it is reasonable, in the sense of being practicable, for a claimant to relocate to a region where objectively there is no appreciable risk of the occurrence of the feared persecution. 13 Leave to raise reliance upon Randhawa is refused. It is a ground which has no substance. 14 A number of grounds assert that the Tribunal failed to consider the claims being advanced. One ground thus asserts that the Tribunal's decision failed to take " into account the full gravity of my circumstances and consequences of the claim ." Another ground separately asserts that the " Tribunal did not take in to account certain relevant consideration or 'integers' central to the applicant's claim ". Other grounds refer to the " immense and intimidating pressure " to which the now Appellant was exposed and assert a failure on the part of the Tribunal to consider those matters. 15 A number of answers may be given for rejecting these grounds. 34 In the present proceedings, a number of the Grounds of Appeal are in substantially the same terms as were before Justice Collier in SZINP v Minister for Immigration & Citizenship [2007] FCA 1747. Those grounds in the present appeal provided (without alteration): 3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437. 5. The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. ... 11. The Tribunal applied the wrong test: Particulars: a) The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was , in fact , placing high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt. b) The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amount to persecution. The grounds as they were expressed in the proceedings before Collier J differed to the extent that those grounds did not refer to the Magistrate as being " learned " and did not refer to the decision in Randhawa as being a decision of the Full Court or the citation to that decision. There is not much other difference between these grounds in the present proceedings and those before Collier J. 37 Reliance upon Randhawa may provide a further instance. The ground now relied upon in this Court did not find its counterpart in any of the grounds relied upon before the Federal Magistrate and was not mentioned in the applicant's written submissions as filed with that Court. 38 Other parallels may also be discerned from a comparison between the grounds raised in the present proceedings and those before Collier J. 39 The orders of the Court are: 1. The appeal be dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 20 May 2008 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: M P Cleary Solicitor for the First Respondent: K Hooper (DLA Phillips Fox) Date of Hearing: 19 May 2008 Date of Judgment: 20 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/707.html


case_title: SZATV v Minister for Immigration & Citizenship [2007] HCA 40 , 237 ALR 634

case_text: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 was a decision of the Full Court which concerned whether a person was a refugee who could reasonably relocate within his own country. Black CJ, at 440 1, concluded in part as follows: The appellant's primary argument must be rejected. Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders. Whitlam J agreed. The conclusions of the Chief Justice were further considered by the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40 at [10] , [2007] HCA 40 ; 237 ALR 634 at 636 per Gummow, Hayne and Crennan JJ. Their Honours there accepted that the basic test is whether it is reasonable, in the sense of being practicable, for a claimant to relocate to a region where objectively there is no appreciable risk of the occurrence of the feared persecution.


case_title: SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389

case_text: Third, there is no obligation imposed upon the Refugee Review Tribunal to refer in its reasons to every piece of evidence that was before it: SZEHN v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. A failure on the part of the Tribunal to refer to each individual claim or to a particular aspect of the evidence in support of a claim being advanced does not necessarily lead to a conclusion that the claim or that piece of evidence has not been considered. 19 Finally, and even if the Appellant could overcome the former obstacles to his success, the present Grounds of Appeal should be dismissed upon the basis that the Tribunal did in fact consider the claims being advanced by the now Appellant. There simply has been no failure on the part of the Tribunal to consider either the entirety of the claims being advanced by the now Appellant or, more specifically, the matters now relied upon in his Grounds of Appeal .


case_text: It should further be noted that this ground was not a ground raised for resolution before the Federal Magistrate. No satisfactory explanation has been provided for not previously raising it. Although this Court has a discretion to permit a new ground to be raised on appeal, there should generally be an adequate explanation for not raising the ground before the Federal Magistrate ( SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 at [38] [41]) and leave should only be granted if it is expedient in the interests of justice to do so ( VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46] [48]). In the present proceedings, the only explanation provided yesterday was that this particular ground was inserted consequent upon a meeting between the Appellant and a migration agent.


case_title: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1


case_text: The test as to whether it is " reasonable " for an applicant to relocate requires that " the evaluation be proper, realistic and fair and all the circumstances be taken into account ": SZIED v Minister for Immigration & Citizenship [2007] FCA 1347 at [52] .


case_text: In the present proceedings, a number of the Grounds of Appeal are in substantially the same terms as were before Justice Collier in SZINP v Minister for Immigration & Citizenship [2007] FCA 1747. Those grounds in the present appeal provided (without alteration): 3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437. 5. The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. ... 11. The Tribunal applied the wrong test: Particulars: a) The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was , in fact , placing high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt. b) The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amount to persecution. The grounds as they were expressed in the proceedings before Collier J differed to the extent that those grounds did not refer to the Magistrate as being " learned " and did not refer to the decision in Randhawa as being a decision of the Full Court or the citation to that decision. There is not much other difference between these grounds in the present proceedings and those before Collier J.


case_text: It is considered that there is no basis in the present proceedings to reach any conclusion other than that the evaluation of the now Appellant's claim by the Tribunal was " proper, realistic and fair ". The alleged error on the part of the Tribunal in making the findings it made was not further identified other than a submission made orally by the Appellant yesterday that he could not relocate within India because of language limitations. But that was a matter addressed by the Tribunal and resolved against the Appellant. Any further complaint as to the decision in fact reached by the Tribunal, it is considered, is a complaint as to the merits of the decision reached. Compare: SZKDY v Minister for Immigration & Citizenship [2007] FCA 1667 at [8] per Gyles J.


case_text: The Federal Magistrates Court has, in turn, dismissed an application seeking review of the Tribunal's decision: SZKPH v Minister for Immigration & Citizenship [2007] FMCA 1962. The Appellant now appeals to this Court. He appeared before the Court yesterday unrepresented, albeit with the assistance of an interpreter. Previously filed with the Court were written submissions by both the Appellant and the Respondent Minister. 4 The Notice of Appeal sets forth ten purported Grounds of Appeal , although a number of those grounds raise substantially the same issues. None of the grounds has been made out and the appeal is dismissed. 5 The first two grounds assert that the Federal Magistrate failed to find that the Tribunal had committed error of law, jurisdictional error, factual error, and denied the now Appellant procedural fairness.


case_text: The material before the delegate is set forth in his decision dated 11 December 2006. The material that was before the Tribunal is also set forth in its reasons for decision. There was no identification by the Appellant of those documents which he contended should have been before the Tribunal but were not. Generalised assertions as to a denial of procedural fairness and a citation of the decision in Muin does nothing to assist this Court in the resolution of a challenge to a decision of the Tribunal: SZJMU v Minister for Immigration & Citizenship [2007] FCA 1344 at [16] per Mansfield J.


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


case_outcome: affirmed

case_text: appellant is a citizen of China who arrived in Australia on 3 April 2008. She lodged an application for protection visa, which was refused by a delegate of the Minister. On an application for review of that decision, the Refugee Review Tribunal affirmed the decision of the delegate. The Tribunal was not satisfied the applicant's conduct in Australia satisfied s 91R(3)(b) of the Migration Act 1958 (Cth) ('the Act'). On an application for review to the Federal Magistrates Court, Raphael FM dismissed the application ( SZNAL v Minister for Immigration and Citizenship [2009] FMCA 673). In her notice of appeal the appellant raises a single ground, which, as particularised, may raise certain sub-grounds. The ground in the notice of appeal is that the Federal Magistrate failed to consider the applicant's claim that the RRT decision was affected by jurisdictional error in that it incorrectly applied s 91R(3) of the Act. The particulars are: "According to s 91R(3) , the Tribunal must disregard the applicant's conduct in Australia." ('Ground 1') "The Tribunal failed to invite the applicant to establish the purpose for her Falun Gong practice in Australia." ('Ground 2') "The applicant claims that she did not practise Falun Gong for the purpose of her current visa applicant." ('Ground 3') Before the Tribunal the appellant claimed that she became a practitioner of Falun Gong in 1998 but that in 1999 she ceased practising Falun Gong when Falun Gong was banned. The appellant did not claim to have left China because she was a Falun Gong practitioner who was unable to practise Falun Gong. Rather, her claim seems to have been that she had a well-founded fear of persecution due to her imputed political opinion as a person who opposed the government's treatment of Falun Gong practitioners.


case_outcome: distinguished

case_text: Toro Martinez argued that Direction No 21 had not overcome the criticism of its predecessor, Direction No 17, made by Dowsett J in Aksu v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 514 ; (2001) 65 ALD 667 at 674-675 [21] - [24] . There, his Honour said that while the direction invited a balancing exercise which would normally involve an assessment of all the relevant factors having regard to their significance in the case in question, in fact that direction fettered that process. This was because it prescribed that some factors could never have more weight than others. His Honour pointed out that direction No 17 set out primary considerations which amounted to direct outcomes resultant from a person's bad character so that its effect was that ( Aksu 65 ALD at 674 [23]): "... once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of a visa. That is inconsistent with the unfettered discretion conferred by s 501."


case_text: J referred to the principle, also relied on by Mr Toro Martinez here, that in the ordinary case, where no problem of confidentiality arises, an opportunity should be given to a person affected to deal with adverse information that is credible, relevant and significant to a decision to be made. The decision-maker must determine what such information is before arriving at the final decision and give an opportunity to the person affected to deal with it: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 [15] and 96 [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Information that could not be dismissed from further consideration by the decision-maker before making the decision was "credible, relevant and significant".


case_outcome: discussed

case_text: tribunal is not required to address every piece of evidence before it, provided that it considers the intergers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 at 641 [47] "the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons." However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued: "It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked."


case_text: court will assume that the legislature intended to act fairly when it construes retrospective legislation to ascertain the extent that the law was intended to operate retrospectively: Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 at 571 [54] per Spigelman CJ. And, there is a general rule that where the legislature alters the rights of persons retrospectively unless the Act clearly so operates, the Court will not construe it to affect rights: cf: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466 at 486C-D per Mason JA: see too NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133 at 161-162 [130]-[132] per Spigelman CJ, with whom Hidden and Latham JJ agreed.


case_title: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466


case_title: Becker v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58

case_text: reviewing an administrative decision the tribunal has to give the decision it considers to be the correct or preferable decision. That function must be performed independently of any instruction, advice or wish of the executive government, including in cases where government policy is a relevant factor for consideration and the powers of the tribunal are limited to affirming or recommending the reconsideration of the decisions of a Minister: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 17-18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, approving Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58 at 163 per Brennan J as President of the Tribunal. The decision of the tribunal in the particular circumstances of each case must be arrived at according to its opinion as to the merits of that case.


case_title: Coco v The Queen (1994) 179 CLR 427

case_text: Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 ; (2007) 163 FCR 414 at 442-444 [105] - [113] , Black CJ, French and Weinberg JJ discussed the construction of s 501 and applied the principles identified in the following passage in Coco v The Queen (1994) 179 CLR 427 at 437. There Mason CJ, Brennan, Gaudron and McHugh JJ said: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights (see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at p 12, per Mason CJ)." They said that application of this principle by the Courts would be likely to enhance the Parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights: Coco 179 CLR at 437-438. In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 370-372 Burchett and Lee JJ discussed (in passages approved in Haneef 163 FCR at 443 [108] and [111]) a statutory predecessor of s 501 that provided that an illegal immigrant was liable to deportation if that person had been convicted of offences and been sentenced to imprisonment for at least one year. They said that the section deprived the persons "caught by it of one of their most precious rights, their right of community". Burchett and Lee JJ said that the making of a deportation order was a plain infringement of liberty and was more so if the law authorising it was retroactive. They said ( Sciascia 31 FCR at 372): "Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation."


case_text: long line of authority in this Court has held that the tribunal has jurisdiction to review a purported decision, even where it is clear that the decision of the original decision-maker was affected by a jurisdictional error: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited [1979] FCA 21 ; (1979) 41 FLR 338 at 342 344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration [2004] FCAFC 248 ; (2004) 139 FCR 344 at 352-354 [28] - [32] per Finn, Mansfield and Gyles JJ. The tribunal has power to cure a defect in the delegate's decision once the tribunal's jurisdiction has been invoked by an application for review: Zubair 139 FCR at 354. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 116 per Mason J.


case_text: is a jurisdictional error for an administrative tribunal to ignore relevant material: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. The tribunal must give its reasons for its decision pursuant to s 43(2) of the Administrative Appeals Tribunal Act . The reasons must include the tribunal's findings on material questions of fact together with a reference to the evidence or other material on which those findings were based: s 43(2B). As McHugh, Gummow and Hayne JJ observed in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [68] , in respect of the analogous provision in s 430 of the Migration Act , the tribunal need not make findings on any and every matter of fact objectively material to its decision. They said that s 430: "... requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make , and then set out, some findings additional to those which it actually made." (original emphasis) The assessment was considered by the tribunal in relation to Mr Toro Martinez's return to Columbia and the position of his fiancée. But, the tribunal assessed his relationship with his daughter only on the basis of the 15 April 2008 letter. The tribunal did not expressly consider the assessment's conclusion that it would be unreasonable to expect the daughter to travel to Columbia, no doubt, because of its finding as to the nature of the relationship between her and her father. Since I have found that the tribunal ignored and thus, failed to have regard to the strongly corroborative and relevant material in the daughter's 2001 interview and 2007 letter, I am satisfied that it committed a jurisdictional error: Craig 184 CLR at 179. Ground 3 Mr Toro Martinez argued that the tribunal reached a conclusion not open on the evidence before it, namely that it was reasonable for it to conclude that he would face no serious danger of personal harm by returning to Columbia. The tribunal noted that he had claimed that he might face personal danger in "certain regions" but that he had not asserted that Cordoba was one of them. It said he had no knowledge of any particular problems, of the nature he feared, in the town in which his sole surviving uncle lived. The tribunal had relied upon the conclusion of the departmental officer who had compiled the international obligations and humanitarian concerns assessment that there was a mere possibility that Mr Toro Martinez might suffer serious harm as a result of indiscriminate generalised or random violence were he to return to Columbia. He complained that the tenor of the assessment was replete with references to instability, human rights abuses at every level of government and society in Columbia, and the insurgency of guerilla groups who also indulged in substantial and repeated violations of human rights. He claimed that country information also supported a very pessimistic assessment of the state of civil society in Columbia.


case_text: Minister, on the other hand, relied upon the words in item 7(1) "... is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa ... were a visa that had been granted". He contended that this retrospectively deemed the delegate's decision always to have been valid and that, as a result, the tribunal's decision affirming that decision was unimpeachable. The Minister argued that to affirm the decision under review had the effect of leaving the delegate's decision as the only operative decision. He contended that an affirmation by the tribunal of a decision of a delegate has the effect that the original decision of the delegate continues to operate and the later decision of the tribunal does not operate in substitution: Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 ; (2008) 167 FCR 578 at 583 [23] per Tamberlin J, with whom Besanko J agreed at 586 [42]; see also Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587F-588B per North J. However, as French, O'Loughlin and Whitlam JJ pointed out in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 ; (2002) 118 FCR 326 at 346 [68] the source of the tribunal's power to give the correct or preferable decision on a review is s 43 of the Administrative Appeals Tribunal Act . They said: "It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision ... Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa."


case_text: finding is the province of the tribunal. Ordinarily, an error of fact by the tribunal will not constitute a jurisdictional error, let alone an error of law. There is no error of law in simply making a wrong finding of fact: Enfield City v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Mr Toro Martinez accepted that position. However, he argued that the tribunal's conclusion that he would face no serious danger of personal harm by returning to Columbia was not a finding that the tribunal could make on any fair reading of the totality of the material on which it was based. He relied on the principle that if a decision-maker made a finding that was a critical step in arriving at its ultimate conclusion, but had no evidence to support it, the finding may well constitute a jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 at 407 [19] per Mansfield, Selway and Bennett JJ; SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] per Greenwood J; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 ; (2008) 168 FCR 1 at 12 [42] per Flick J.


case_text: provisions that do create fictions must be carefully construed. The purpose for which the legislature introduced the fiction must be identified by the Court: Muller v Dalgety & Co Ltd [1909] HCA 67 ; (1909) 9 CLR 693 at 696 per Griffith CJ; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65 per Windeyer J; see too Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4 ; (1974) 133 CLR 641 at 655 per Gibbs J. The curative effect of legislative provisions using the statutory fictions created by phrases such as those used in item 7 will usually operate only on the source of invalidity identified in the enactment: cf: Yougarla v Western Australia [2001] HCA 47 ; (2001) 207 CLR 344 at 368 [60] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.


case_text: Minister, on the other hand, relied upon the words in item 7(1) "... is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa ... were a visa that had been granted". He contended that this retrospectively deemed the delegate's decision always to have been valid and that, as a result, the tribunal's decision affirming that decision was unimpeachable. The Minister argued that to affirm the decision under review had the effect of leaving the delegate's decision as the only operative decision. He contended that an affirmation by the tribunal of a decision of a delegate has the effect that the original decision of the delegate continues to operate and the later decision of the tribunal does not operate in substitution: Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 ; (2008) 167 FCR 578 at 583 [23] per Tamberlin J, with whom Besanko J agreed at 586 [42]; see also Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587F-588B per North J.


case_title: Lesuma v Minister for Immigration and Citizenship [2007] FCA 2106 ; (2007) 99 ALD 514

case_text: my opinion Direction No 21 does not have that vice. The Minister asserted that it created a rebuttable presumption about the weight to be given to primary considerations that should guide the exercise of decision-makers' discretions in a uniform manner. I agree with Emmett J who said that the terms of Direction No 21 do not contain a requirement that any decision-maker, whether the Minister, a delegate or the tribunal, reach a conclusion that particular conduct of the visa holder is abhorrent: Lesuma v Minister for Immigration and Citizenship (No 2) [2007] FCA 2106 ; (2007) 99 ALD 514 at 517 [11] . I am not satisfied that Direction No 21 exceeded the ambit of the Minister's power to give it under s 499(1). Often decision-makers will be required to take into account or to have regard to, or to give weight to, numerous, sometimes conflicting factors in arriving at decisions by force of legislation. Similarly, in general, the description of a factor as a "primary consideration" or the attribution of weight to be given to a factor will provide an effective guide to decision-makers but will not require them to arrive at a predetermined conclusion. Because par 2.2 requires an overall balancing process to be undertaken by the decision-maker, he or she will be able to address the necessities and circumstances of the individual case.


case_text: as French, O'Loughlin and Whitlam JJ pointed out in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 ; (2002) 118 FCR 326 at 346 [68] the source of the tribunal's power to give the correct or preferable decision on a review is s 43 of the Administrative Appeals Tribunal Act . They said: "It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision ... Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa."


case_text: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, Mason J explained that in the absence of any statutory indication of the weight to be given to various considerations, it was generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising a statutory power. But he said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no importance. Mason J cautioned that the preferred ground on which that judicial power was to be exercised was that the decision was "manifestly unreasonable". I discussed the principles applicable to a statutory duty of, or requirement for, a decision-maker to take into account or to have regard to factors in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 at [103] - [112] . When the expression "regard must be had to" or like expressions are used in a statute in respect of a particular criterion or factor to be considered by a decision-maker, he or she is bound to treat such a factor as a central or fundamental element in the making of the relevant decision: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobson, Lander and Foster JJ applying Telstra [2008] FCA 1758 at [103] - [112] .


case_title: Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 ; (2007) 163 FCR 414


case_title: Minister for Immigration and Ethnic Affairs v Sciascia (1981) 31 FCR 364

case_text: said that application of this principle by the Courts would be likely to enhance the Parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights: Coco 179 CLR at 437-438. In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 370-372 Burchett and Lee JJ discussed (in passages approved in Haneef 163 FCR at 443 [108] and [111]) a statutory predecessor of s 501 that provided that an illegal immigrant was liable to deportation if that person had been convicted of offences and been sentenced to imprisonment for at least one year. They said that the section deprived the persons "caught by it of one of their most precious rights, their right of community". Burchett and Lee JJ said that the making of a deportation order was a plain infringement of liberty and was more so if the law authorising it was retroactive. They said ( Sciascia 31 FCR at 372): "Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation."


case_text: am not satisfied that the tribunal committed any error in the way in which it expressed itself. Decision-makers are allowed considerable latitude in their choice of expression of the reasons they had for determining the matter as they did: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. I reject this ground. Ground 6 Mr Toro Martinez claimed that he had been denied procedural fairness because the tribunal referred to two documents in forming its conclusion that: 'Without more detailed evidence and submissions, one could not draw conclusions about the practical standard of health care that would be available to the applicant in [two named towns], but it seems safe to say that Columbia is not totally devoid of medical services." The two documents were material from the Pan American Health Organisation as to Columbia's health system, the number of public hospitals, doctors and nurses and pages in Volume 2 of a publication "Health in the Americas 2007" which dealt with the State's subsidised health insurance system. It is common ground that those documents were not drawn to Mr Toro Martinez's attention before the tribunal made its decision and he had no opportunity to inspect them, or to make submissions in relation to them. Under s 39(1) of the Administrative Appeals Tribunal Act , the tribunal was required to: "... ensure that every party to a proceeding before the tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."


case_title: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323

case_text: is a jurisdictional error for an administrative tribunal to ignore relevant material: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. The tribunal must give its reasons for its decision pursuant to s 43(2) of the Administrative Appeals Tribunal Act . The reasons must include the tribunal's findings on material questions of fact together with a reference to the evidence or other material on which those findings were based: s 43(2B). As McHugh, Gummow and Hayne JJ observed in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [68] , in respect of the analogous provision in s 430 of the Migration Act , the tribunal need not make findings on any and every matter of fact objectively material to its decision. They said that s 430: "... requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make , and then set out, some findings additional to those which it actually made." (original emphasis)


case_title: Muller v Dalgety & Co Ltd [1909] HCA 67 ; (1909) 9 CLR 693


case_text: Courts have developed guidelines or principles from time to time that are used in the exercise of discretions in judicial decision-making. As Mason and Deane JJ pointed out in Norbis v Norbis [1986] HCA 17 ; (1986) 161 CLR 513 at 519 it does not follow that, because a discretion is expressed in legislation in general terms, the legislature intends that the Court should refrain from developing rules or guidelines affecting its exercise. They said that such rules can promote consistency in decision-making and diminish the risks of arbitrary and capricious adjudication. I am of opinion that similar considerations inform the giving and content of directions under powers such as s 499(1). It is a feature of parliamentary democracy that government policy should be carried out through the exercise of the executive power which, in turn, is subject to parliamentary scrutiny. The structure of our system of government is that the executive power of the Commonwealth is vested in the Governor-General by s 61 of the Constitution . However, in practice and as a matter of convention that power is exercised by the Queen's Ministers of State for the Commonwealth who administer departments of State pursuant to s 64 of the Constitution . And, s 64 also requires that a Minister may not hold office for longer than three months unless he or she becomes a senator or a member of the House of Representatives. Thus, the exercise of the executive power under Ch II of the Constitution is confided to Ministers who are answerable for their conduct of the executive power in the Parliament. One purpose of the Parliament enacting legislation with broad discretions, such as are found in s 501(2) of the Migration Act , is to accommodate changing government policies over the years. The constitutional scheme of responsible government would be defeated if departmental decision-makers were entirely free to arrive at their own idiosyncratic views, unfettered by the control of the Minister who, by s 64 of the Constitution , is the person who administers a department of State and answers for that administration in the Parliament. Hence, the power to give a written direction under s 499 is a valuable means of the Minister ensuring that officers of his or her department will have appropriate regard to the objectives or policies of the government of the day in the exercise of their powers and functions. I am of opinion that the power in s 501(2) to cancel a visa is capable of being made the subject of a direction made under s 499(1).


case_text: court will assume that the legislature intended to act fairly when it construes retrospective legislation to ascertain the extent that the law was intended to operate retrospectively: Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 ; (2005) 63 NSWLR 557 at 571 [54] per Spigelman CJ. And, there is a general rule that where the legislature alters the rights of persons retrospectively unless the Act clearly so operates, the Court will not construe it to affect rights: cf: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466 at 486C-D per Mason JA: see too NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133 at 161-162 [130]-[132] per Spigelman CJ, with whom Hidden and Latham JJ agreed. The Minister also argued that retrospective legislation may affect existing proceedings. That, of course, is correct. But the result is affected by the principle that the legislation will be read down so as not to have such an operation in the absence of clear words of a contrary statutory intention: see Nutricia 253 ALR at 162 [132] per Spigelman CJ.


case_text: tribunal is not required to address every piece of evidence before it, provided that it considers the intergers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ; (2003) 75 ALD 630 at 641 [47] "the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons." However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued: "It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked."