case_text: approach to assessing insolvency set out by Palmer J in Lewis v Doran [2004] NSWSC 608 ; (2004) 184 FLR 454 at [106] [108] is particularly instructive. Those paragraphs are set out below. They relate to the Corporations Act 2001 (Cth) ("the Corporations Act "), but are applicable to like considerations which arise under the bankruptcy legislation. I think that I must approach the application of s 95A [of the Corporations Act ] with two considerations in mind. First, the words of s 95A must be construed as they stand, without addition or subtraction. Second, the law both before and after the enactment of s 95A is unequivocally and emphatically clear that insolvency is, first and last, a question of fact: ...to be ascertained from a consideration of the company's financial position taken as a whole. In considering the company's financial position as a whole, the Court must have regard to commercial realities. Commercial realities will be relevant in considering what resources are available to the company to meet its liabilities as they fall due, whether resources other than cash are realisable by sale or borrowing upon security, and when such realisations are achievable... Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation [2001] NSWSC 621 ; (2001) 53 NSWLR 213 at 224 [2001] NSWSC 621 ; ; 164 FLR 430 (citations of authority omitted)... The question of a company's solvency may arise retrospectively or prospectively. The question arises retrospectively where, for example, a liquidator is seeking to recover an unfair preference or to set aside an insolvent transaction so that the issue is solvency as at a date prior to the winding up. The question may arise prospectively where a company is sought to be wound up in insolvency and the company's ability to pay its debts must be determined not only by reference to debts payable as at the date of trial but also by reference to its ability to pay debts which will fall for payment some time in the near future. Where the question is retrospective insolvency, the Court has the inestimable benefit of the wisdom of hindsight. One can see the whole picture, both before, as at and after the alleged date of insolvency. The Court will be able to see whether as at the alleged date of insolvency the company was, or was not, actually paying all of its debts as they fell due and whether it did, or did not, actually pay all those debts which, although not due as at the alleged date of insolvency, nevertheless became due at a time which, as a matter of commercial reality and common sense, had to be considered as at the date of insolvency. By reference to what actually happened, rather than to conflicting experts' opinions as to the implications of balance sheets, the court's task in assessing insolvency as at the alleged date should not be very difficult. Transferring the matters referred to by Palmer J to their current context, the following propositions may be stated: The bankrupt's financial position must be considered as a whole, having regard to commercial realities. Resources available to the bankrupt, whether by cash or realisation of assets or by borrowing upon security, are to be taken into account. With hindsight, the bankrupt's ability to pay his debts as and when they fall due is to be assessed.


case_outcome: applied

case_text: cash flow test is not simply an assessment of the bankrupt's debts due and cash available to pay them on one day fixed in time, but involves a forward looking assessment of the bankrupt's ability to pay his debts as and when they fall due in the not distant future. Debts are not simply "debts 'then' payable, but...debts 'as they become due' — a phrase which looks to the future" (Griffiths CJ in Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514 at 1527). The identification of the bankrupt's contingent and prospective liabilities as at 10 April 2002 and the extent to which they may be considered as part of his debts, at that time, is a crucial matter for determination. The weight of authority suggests that contingent or prospective liabilities may be included as part of a person's debts provided that there is a real likelihood of them being established.


case_outcome: followed

case_text: Re Saebar; Official Receiver v Saebar (1971) 18 FLR 317 , Hoare J was concerned with the predecessor version of s 120. In that form, the exception currently found in s 120(3)(b) was found in s 120(2)(a). The exception provided that the transfer would not be void if the party claiming under the transfer could prove "that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement". As in the current Act, "debt" was defined to include a liability. In that case, the prospective liability at issue was a liability to pay damages for a personal injury, where judgment had not yet been entered. The question before Hoare J was whether a liability extended to contingent and prospective liabilities. His Honour held that a prospective liability should be taken into account in determining "all of the debts" of the settlor if, considering the whole of the circumstances, there is a real likelihood of the prospective liability becoming, in due course, an actual liability. According to Hoare J, prospective liabilities may be ignored if they are "purely speculative and without any real likelihood of being established" (at 322). It should be noted that the test for insolvency at that time was a cash flow test which is the same test required by the current Act and the Corporations Act . Justice Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed". In White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220 , McDougall J distinguished the circumstances of the case before him from those of both Re Saebar and Re Hyams . White Constructions concerned the solvency of a company for the purposes of the Corporations Act and relying on the definition of solvency in s 95A of that Act. At [317], McDougall J said: The decisions in Saebar and Hyams , and the decisions discussed in those cases, recognise that an unestablished (and unquantified) liability may be required to be taken into account for the purposes of the particular exercise propounded by the legislation. They do not show that a claim for unliquidated damages is a debt, let alone a debt that is due and payable. I therefore do not think that the decisions are of direct relevance to the issue of insolvency as it has been framed. I am persuaded, having regard to the above analysis, that the proper view of the authorities on this question is that the principles enunciated in the early 1970s in Re Saebar and Re Hyams are still good law and should be applied, as they were in Re Finney . What debts, including contingent liabilities, did John Turner have?


case_text: Re Hyams; Official Reciever v Hyams (1971) 19 FLR 232 , Gibbs J similarly held that when determining the debts of a settlor for the purposes of s 94(1) of the Bankruptcy Act 1924 (Cth), contingent liabilities should be considered if there was a reasonable possibility that the settlor would have had to meet them at the time. That case dealt with a contingent liability arising from a guarantee and as such it was a liability that could be easily quantified. In any event, Gibbs J did not limit his relevant observations to cases so quantifiable. Justice Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed". In White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220 , McDougall J distinguished the circumstances of the case before him from those of both Re Saebar and Re Hyams . White Constructions concerned the solvency of a company for the purposes of the Corporations Act and relying on the definition of solvency in s 95A of that Act. At [317], McDougall J said: The decisions in Saebar and Hyams , and the decisions discussed in those cases, recognise that an unestablished (and unquantified) liability may be required to be taken into account for the purposes of the particular exercise propounded by the legislation. They do not show that a claim for unliquidated damages is a debt, let alone a debt that is due and payable. I therefore do not think that the decisions are of direct relevance to the issue of insolvency as it has been framed. I am persuaded, having regard to the above analysis, that the proper view of the authorities on this question is that the principles enunciated in the early 1970s in Re Saebar and Re Hyams are still good law and should be applied, as they were in Re Finney . What debts, including contingent liabilities, did John Turner have?


case_text: Davies' judgment in Re Cao, ex parte Dixon v Cao [1994] FCA 536 provides an interesting analysis of the case law dealing with the inclusion of contingent liabilities in the assessment of insolvency for the purposes of s 120 of the Act. His Honour relied on this extract by Cotton LJ in Re Ridler; Ridler v Ridler (1882) 22 Ch.D. 74 at 82: Then as to the point that the settler was not indebted, but only subject to a liability which might never become a debt. A man is not at liberty to take a sanguine view, but is bound to act upon a reasonable view of what is likely to happen. After discussing what his Honour called a "clear line of authorities", his Honour concluded that, "[i]n a determination of the issue whether the settler can pay 'all his debts', it is necessary to take account of contingent liabilities and, if necessary, to make a valuation" (at 6 7). Justice Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed".


case_outcome: cited

case_text: Davies' judgment in Re Cao, ex parte Dixon v Cao [1994] FCA 536 provides an interesting analysis of the case law dealing with the inclusion of contingent liabilities in the assessment of insolvency for the purposes of s 120 of the Act. His Honour relied on this extract by Cotton LJ in Re Ridler; Ridler v Ridler (1882) 22 Ch.D. 74 at 82: Then as to the point that the settler was not indebted, but only subject to a liability which might never become a debt. A man is not at liberty to take a sanguine view, but is bound to act upon a reasonable view of what is likely to happen. After discussing what his Honour called a "clear line of authorities", his Honour concluded that, "[i]n a determination of the issue whether the settler can pay 'all his debts', it is necessary to take account of contingent liabilities and, if necessary, to make a valuation" (at 6 7).


case_text: Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed". I am persuaded, having regard to the above analysis, that the proper view of the authorities on this question is that the principles enunciated in the early 1970s in Re Saebar and Re Hyams are still good law and should be applied, as they were in Re Finney . What debts, including contingent liabilities, did John Turner have?


case_outcome: distinguished

case_text: White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220 , McDougall J distinguished the circumstances of the case before him from those of both Re Saebar and Re Hyams . White Constructions concerned the solvency of a company for the purposes of the Corporations Act and relying on the definition of solvency in s 95A of that Act. At [317], McDougall J said: The decisions in Saebar and Hyams , and the decisions discussed in those cases, recognise that an unestablished (and unquantified) liability may be required to be taken into account for the purposes of the particular exercise propounded by the legislation. They do not show that a claim for unliquidated damages is a debt, let alone a debt that is due and payable. I therefore do not think that the decisions are of direct relevance to the issue of insolvency as it has been framed.


case_text: respondents rely on Box Valley Pty Ltd v Kidd [2006] NSWCA 26 as an answer to the authorities reviewed above. That judgment dealt with whether a contingent liability arising from a default clause in a forward sales contract before a default notice has been given constitutes a debt for the purposes of s 95A of the Corporations Act . The New South Wales Court of Appeal determined that it did not because it was an unliquidated claim for damages that was not yet quantified. At [14], Bryson JA said: "The word 'debt' is used in s 95A of the Corporations Act without any supporting definition. An entitlement to claim damages for breach of a contractual obligation to sell and deliver goods is not a debt within the ordinary meaning of that word." Section 95A of the Corporations Act defines solvency and insolvency in the same terms as ss 5(2) and (3) of the Act. In contrast to the Act, the Corporations Act does not define debt to include liability.


case_outcome: referred to

case_text: is contended by the applicant that PWB was contractually obliged to refund investors' monies within one month of the investor giving notice of its demand. Justice Crawford, as his Honour then was, made factual findings to this effect in Law Society of Tasmania v Turner [2001] TASSC 129 ; (2001) 11 Tas R 1 at [7] . Investors were provided by PWB with a "PWB Mortgage Register Information Sheet" and with a "Mortgage Investment Form" to sign. Though these forms appear to have changed slightly over time, they are, in all relevant respects, the same. The Information Sheet states that the terms of the investment are contained in the Investment Form and the Information Sheet. The Information Sheet contains a term, under the heading "Withdrawals" that "[o]ne month's notice is required for both partial and total withdrawal of funds". The respondents contend for an interpretation of this term that is both contrary to the finding of Crawford J and contrary to the plain meaning of the document. They submit that, read in conjunction with another section of the Information Sheet which is headed 'Loan Advances' and states "[l]oan advances are interest only and repayable on demand. Capital repayments are accepted subject to notice", one should understand the 'Withdrawals' term to refer to the loans made by PWB to borrowers on behalf of the investors, not to funds invested with PWB and repayable by PWB. I do not accept this submission. PWB was liable to investors for the repayment of their monies on one month's notice. Investors had a cause of action for breach of contract against PWB as at April 2002. As at 10 April 2002, causes of action in breach of trust had accrued in investors. PWB was in a trust relationship with investors in the Fund. PWB was more than an agent, it was a trustee. Investors invested their funds with the Fund, not with a specific borrower. They were, amongst other things, entitled to be informed and kept up to date about the loans in which their money had been invested. PWB engaged in conduct that breached the trust arrangement constituted by the Fund between PWB and the investors. Judgment has not been entered in relation to these claims, but, in accordance with the authorities referred to above, I am satisfied that these claims as at 10 April 2002 were likely to become debts of the bankrupt. I base this finding on the following: PWB regularly substituted investor funds in defaulting loans without advising clients and without client consent. The bankrupt has conceded as much. Justice Crawford found at [37] of Law Society of Tasmania v Turner : [i]n my opinion a competent legal practitioner, paying proper regard to a practitioner's duty to investor clients, would have realised long before November 1998 that the firm's practice of substituting clients' funds into defaulting loans, without the authority of the clients, amounted to a breach of that duty. It is unnecessary to quantify the equitable debts that these breaches of trust gave rise to in light of my finding in relation to the contractual right of investors to their funds. Quantifying the debts of the bankrupt resulting from the breaches of trust is not straightforward. On the evidence, it is in the realm of millions of dollars. Absent the debts of the bankrupt as a result of the breach of contract, I am satisfied the bankrupt would not have had the ability to meet the debts arising from claims in breach of trust. Law Society proceedings On 19 December 2001, the Law Society of Tasmania applied to the Supreme Court of Tasmania for a declaration that PWB, the firm, was in fiduciary default (proceeding TASC M 377 of 2001). Mr Turner was not named as a respondent to this action because he was not a partner of the firm at that date. An order was made on 1 October 2002 that PWB was "in default". The Solicitors Trust paid $80,216.04 into the Court fund subsequent to that order. That amount increased to $195,601.74 by August 2004.


case_title: Fouche v Superannuation Fund Board [1952] HCA 1 ; (1952) 88 CLR 609


case_text: Minister submits that a Tribunal is not required to make the case for an applicant before it, it is for the applicant to make their submissions: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] . This is undoubtedly correct. However, the inquiry in question would not make the appellant's case for him. Rather, it would seek clarification of the grounds already provided to the delegate, in the circumstance where the delegate's record was wholly unsatisfactory. It is true that the appellant did not reply to the invitation of the Tribunal on these matters. However, the Act, specifically s 359C, envisages the circumstance that no reply is forthcoming and the Tribunal may still need to seek additional information before it should make its decision. This was such a circumstance.


case_text: Tribunal, having considered the relevant authorities to the application then before it, said (at [63]-[64]): In the case currently before the Tribunal, the review applicant put forward to the Department untranslated medical records relating to his maternal grandmother. However, no submissions were provided to the Department to explain the significance or relevance of this evidence to the possible cancellation of the review applicant's student visa. In addition, the Tribunal notes that, in its section 359A letter dated 1 August 2008, the review applicant was invited to provide comment and further information relating to the issues arising in relation to his application for review. However, the review applicant failed to do so within the prescribed period, namely, 19 August 2008, or at any time thereafter. Accordingly, the Tribunal has had regard to the evidence presented to the Department, and accepts that the review applicant may well have been concerned about his maternal grandmother's health at the time that he ceased to be enrolled in a registered course. However, based on the limited evidence before it, the Tribunal is not satisfied that having regard to Ministerial Direction No 38, the tests in Wang and Chen and the dictionary definition of "exception", that these circumstances, even once cultural matters are factored in, constitute exception circumstances beyond the review applicant's control. Nor does the evidence before the Tribunal provide any causal link between the circumstances cited by the review applicant and the non-compliance that has occurred in relation to the cessation of his enrolment. The Tribunal concluded by stating that it was satisfied that the relevant conditions existed for a cancellation of the visa under s 116(3) of the Act and reg 2.43(b) of the Regulations and upheld the primary decision. The appellant then applied to the Federal Magistrates Court of Australia for a review of the Tribunal's decision. The grounds of application raised numerous issues relating to the alleged failure of the Tribunal in the conduct of the proceedings. Fifthly, and finally, the appellant claims that the Tribunal applied the wrong test in determining whether grounds existed for the cancellation of his visa. The appellant submits that rather than form a positive state of satisfaction that there were no exceptional circumstances beyond the appellant's control which explained his non-compliance with condition 8202 as reg 2.43(2)(b)(ii) of the Regulations requires, the Tribunal referred to the discussion in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 ; (2005) 142 FCR 257 at [107] - [116] . That discussion is based on s 137L(1)(b) of the Act which is phrased in different terms to reg 2.43(2)(b)(ii). That section requires an appellant to satisfy the Tribunal that certain circumstances do exist. In contrast, reg 2.43(2)(b)(ii) requires the Tribunal to form a positive state of satisfaction that exceptional circumstances don't exist. The appellant submits that such application of the wrong test constitutes a jurisdictional error.


case_text: Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318 ; (2007) 164 FCR 151 Kenny J at [63] observed: The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J ( Videto ); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ ( Luu v Renevier ); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 364 ; (1990) 21 ALD 139 at 143 per Pincus J ( Detsongjarus ); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ ( Yang ). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. In Luu and Another v Renevier (1989) 91 ALR 39 at 50 the Full Court observed: But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.


case_outcome: considered

case_text: Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318 ; (2007) 164 FCR 151 Kenny J at [63] observed: The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J ( Videto ); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ ( Luu v Renevier ); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 364 ; (1990) 21 ALD 139 at 143 per Pincus J ( Detsongjarus ); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ ( Yang ). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. Therefore a failure of a Tribunal to make inquires in certain circumstances may also constitute jurisdictional error due to ' Wednesbury unreasonableness' (see [62] of Le regarding Wednesbury ). Despite comments in SZIAI at [13]-[15] and [22]-[23] noting the difference between judicial review under the Administrative Decisions (Judicial Review) Act 1977 and judicial review under s 75(v) of The Constitution , SZIAI would not appear to disturb Le . Indeed at [26] of SZIAI the majority stated: ' no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal's decision was infected by jurisdictional error ' [emphasis added]. Such statement would appear to confirm that a failure to make an inquiry could constitute jurisdictional error for at least two different reasons. Those are, a constructive failure to exercise jurisdiction in fulfilling the role of the Tribunal to review, and ' Wednesbury unreasonableness'. ...about a critical fact... Both SZIAI and Le formulate the type of information similarly: ' an obvious inquiry about a critical fact ' (in SZIAI at [25]) or ' obtain important information on a critical issue ' (in Le at [63]). The Court believes that the information in the present circumstances satisfies such test. It was critical to the review whether the appellant's failure to comply with his visa conditions was due to exceptional circumstances beyond his control. The Tribunal was on notice that there evidently were exceptional circumstances claimed through the decision record of the delegate, and the unexplained medical records. However, on the information before the Tribunal, it could not be clear precisely what those grounds were. Both SZIAI and Le make it plain that the inquiry must be directed towards information, ' the existence of which is easily ascertained ' (in SZIAI at [25]) or ' which the decision-maker knows, or ought reasonably to know is readily available ' (in Le at [63]). In Le , Kenny J found (at [77]-[78]): At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker's statements regarding Mr Nguyen's supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen's written statement. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of this case, especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh's residence that day. These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal's review. Alternatively, a call or email to the delegate or Department would be highly likely to have provided at least some degree of clarification of the exceptional circumstances claimed by the appellant. Kenny J found in Le at [77], as extracted above, that an enquiry of the primary decision-maker was a step that could be taken by the Tribunal. It is possible that the delegate would not recall the circumstances of 10 March 2008, 1 April 2008, or the exceptional circumstances claimed by the appellant at that time, as submitted by the Minister, but such possibility is unlikely. Even if information was not forthcoming from either of these sources, had such enquiries been made the Tribunal would have put beyond all doubt that it had before it all the information it could to make its decision. In such circumstance s 359C of the Act would have allowed it to proceed to its decision and there would have been no ground for criticism from this Court. As it stands, however, the Court finds that there was a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable. Is there a jurisdictional error?


case_text: decision of the High Court in Minister for Immigration and Citizenship v SZIAI and Another [2009] HCA 39 ; (2009) 259 ALR 429 was due to be handed down shortly after the hearing of these proceedings. The Court granted leave to the appellant and Minister to make further submissions in reliance upon this decision and for both the appellant and Minister to make further submissions in reply to each other's further submissions. Both the appellant and Minister took advantage of the leave to make submissions on the effect of SZIAI , and the Minister has also made submissions in reply to the appellant's submissions on the effect of SZIAI . As will become apparent, the Court finds such submissions to be highly relevant to its decision. The Court will make its decision in the present matter having reliance only on the first ground of appeal made by the appellant and submissions on the effect of SZIAI . The Court does not need to, and therefore declines to, make any findings in relation to the other grounds of appeal, though it should be noted that submissions in relation to the other grounds of appeal are partially relevant for the consideration of ground one. The factual matrix The present proceedings arise out of very distinct factual circumstances. All of the following observations are made based on the information that was before the Tribunal. Firstly, it appears that there was no interview between the delegate and the appellant on 10 March 2008, as had been scheduled. No record existed explaining why there was no interview. There was no record of the rescheduling of the interview to 1 April 2008 when the decision was made. These facts must be considered against the background of detailed records of communications made and received between the Department and the appellant in previous communications such as those regarding the first notice. The absence of any information explaining what occurred on 10 March 2008 is, to say the least, puzzling. One would have expected there to be some record of events which occurred on that day, even if the proceedings were simply adjourned. In the circumstances, the Court considers that the test at [25] of SZIAI may be apposite. It ' may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review '. The majority in SZIAI found that a failure to make an inquiry in the above circumstances could constitute a jurisdictional error because of a constructive failure to exercise jurisdiction. As will be discussed, the majority also left open the door for failure to make an inquiry being a jurisdictional error for other reasons. Therefore a failure of a Tribunal to make inquires in certain circumstances may also constitute jurisdictional error due to ' Wednesbury unreasonableness' (see [62] of Le regarding Wednesbury ). Despite comments in SZIAI at [13]-[15] and [22]-[23] noting the difference between judicial review under the Administrative Decisions (Judicial Review) Act 1977 and judicial review under s 75(v) of The Constitution , SZIAI would not appear to disturb Le . Indeed at [26] of SZIAI the majority stated: ' no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal's decision was infected by jurisdictional error ' [emphasis added]. Such statement would appear to confirm that a failure to make an inquiry could constitute jurisdictional error for at least two different reasons. Those are, a constructive failure to exercise jurisdiction in fulfilling the role of the Tribunal to review, and ' Wednesbury unreasonableness'. ...about a critical fact... Both SZIAI and Le formulate the type of information similarly: ' an obvious inquiry about a critical fact ' (in SZIAI at [25]) or ' obtain important information on a critical issue ' (in Le at [63]). The Court believes that the information in the present circumstances satisfies such test. It was critical to the review whether the appellant's failure to comply with his visa conditions was due to exceptional circumstances beyond his control. The Tribunal was on notice that there evidently were exceptional circumstances claimed through the decision record of the delegate, and the unexplained medical records. However, on the information before the Tribunal, it could not be clear precisely what those grounds were. Further to the above, SZIAI requires that the inquiry be an obvious one in the circumstances. The exact nature of the inquiry could have been to seek to contact the appellant by another means such as email or telephone since the Tribunal had his details. Alternatively, the Tribunal could have contacted the delegate or Department. The Minister submits that it would be strange that in the circumstance that s 359C and s 360(3) prevented the Tribunal from inviting the appellant before it that it should be able to seek oral evidence under s 359(1) and s 366. However, that informal mechanism is exactly what the High Court has said is available in SZKTI at [47]. Even if the Tribunal did not seek oral evidence, the Tribunal could have sought to clarify whether the appellant had, in fact, received the invitation. To repeat, this is not to suggest that such step is always required of the Tribunal, merely that in certain circumstances it should be taken. Both SZIAI and Le make it plain that the inquiry must be directed towards information, ' the existence of which is easily ascertained ' (in SZIAI at [25]) or ' which the decision-maker knows, or ought reasonably to know is readily available ' (in Le at [63]). In SZIAI the majority found (at [26]): ...there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. The Court considers that the latter ground is relevant for the current circumstances. The Court considers that traditionally Wednesbury unreasonableness has been seen as only applicable in the most extreme of circumstances. That may well be why the High Court allowed the appeal in SZIAI . The Court does not consider that the Tribunal's failure to make further inquiries was so unreasonable that no reasonable person would have adopted such course. Rather, the Court prefers the view that the failure to make further inquires of the appellant, or to inquire of the delegate or Department; coupled with the ease at which such inquiry could be made; coupled with the paucity of information the Tribunal had to make its decision; coupled with the type of inquiry required by reg 2.43(2)(b) of the Regulations leads to the conclusion that the Tribunal failed to conduct a proper review. Despite the prolixity of the Tribunal decision, in reality, the Tribunal only served as a 'rubber stamp' for the primary decision, a decision that was obviously highly problematic, even on the evidence before the Tribunal. The affidavit The Court makes such finding in the absence of reliance on the affidavit of the appellant. The Court does not need to rely on such affidavit, and it would be problematic to do so, given that the appellant has not been cross-examined on it, although the Minister declined the opportunity to do so in both the Federal Magistrates Court and before this Court. The Court accepts that when the appellant's affidavit was provided to Raphael FM the Minister was justified in considering that it was not relevant to any issue which was then identified. However, since the Federal Magistrate relied upon the affidavit in reaching his decision, this Court was obliged to take it into consideration.


case_text: first submission of the appellant, as it was made orally, contended that there was a discretion vested in the Tribunal, pursuant to s 359(1) and s 359C of the Act, to not proceed to make a decision on the facts before it, even though the appellant had failed to respond to the invitation seeking more information. The appellant submits that the Tribunal retains a discretion to gain more information in such situation, and pursuant to Minister for Immigration and Citizenship v SZKTI and Another [2009] HCA 30 ; (2009) 258 ALR 434 , it may do that by telephone or other means. The appellant submits that in the very particular factual circumstances of these proceedings the Tribunal should have sought more information before making its decision. These circumstances include the uncertainty surrounding 10 March 2008; the unclear decision of the delegate; the unclear purpose of the medical documents provided to the delegate; and the obligation of the Tribunal, pursuant to reg 2.43(2)(b) of the Regulations, to be positively satisfied that there were no exceptional circumstances explaining the appellant's failure to comply with condition 8202 of his visa. The appellant's counsel acknowledges that the issues raised for consideration by the Amended Notice of Appeal were not raised in the hearing before the Federal Magistrate in the precise form currently argued. However, the appellant submits that since the delivery of judgment by the Federal Magistrate, the High Court of Australia has delivered its decisions in SZMOK and in SZKTI which were on 2 July 2009 and on 26 August 2009 respectively, each of which the appellant submits are pertinent to the issues raised by the appeal. In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT , obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court. The Tribunal addressed such issue obliquely at [33] to [38] of its decision. However, it concentrated on the narrower issue of whether it could have invited the appellant to appear before it, notwithstanding his failure to reply to the invitation. The Tribunal referred to conflicting authority which considered whether s 360(3) and s 363A of the Act mandates that upon the failure to respond under s 359C of the Act, an applicant is not entitled to appear before the Tribunal. The Federal Magistrate also considered such issue. Since SZKTI it is clear that a Tribunal may obtain information without an appellant appearing before it, for example by telephone: see SZKTI at [47] (referring to s 424(1) which is in identical terms to s 359(1)) and s 366. Therefore, the Tribunal never addressed the issue why it was not exercising its discretion to attempt to seek further information. Instead it appears that the Tribunal either felt it had no power to invite the appellant to appear before it, or, even if it did, it refused to do so. This is not to suggest that the Tribunal must positively state in every decision similar to the current one why it is not going to seek additional information when an applicant fails to provide a response. However, it is notable that the Tribunal did feel it necessary to explain its decision not to seek more information in the present circumstances, albeit on the narrower issue of whether it could have attempted to invite the applicant to appear before it. In many situations, the Tribunal's decision to proceed to a final decision in the absence of comment by the applicant may not be problematic, as the reasons for not seeking further information would be obvious. One of the reasons for the provision of invitations to provide more information or make comment under s 359A of the Act is procedural fairness. For example, the requirement that an applicant ought to be able to make comment on information adverse to his or her position (s 359A(1)). In the situation where no comment is forthcoming, there will usually be no difficulty with the Tribunal exercising its discretion to proceed to a decision because the applicant has been afforded procedural fairness, in the sense of being invited to comment, even if such offer is not accepted. It is possible that, as demonstrated by the current circumstances, the Tribunal can proceed upon a fiction, that being that the applicant had been provided with notice when, in reality, the notice had not been received. The Act, pursuant to sections such as s 379C(4), makes it clear that such a course is open to the Tribunal. However, the current situation is distinct. Although the Act allowed the Tribunal to proceed to decision in the absence of a reply from the appellant, if it did so it would be proceeding on a paucity of facts on an issue critical to the eventual finding, that being whether there were exceptional circumstances which justified the appellant's failure to comply with condition 8202 of his visa. As the Tribunal itself said in the invitation, If the Tribunal ultimately finds that you did not comply with condition 8202 of your student visa...the Tribunal will need to consider whether the non-compliance was "due to exceptional circumstances beyond the non-citizen's control". Further to the above, SZIAI requires that the inquiry be an obvious one in the circumstances. The exact nature of the inquiry could have been to seek to contact the appellant by another means such as email or telephone since the Tribunal had his details. Alternatively, the Tribunal could have contacted the delegate or Department. The Minister submits that it would be strange that in the circumstance that s 359C and s 360(3) prevented the Tribunal from inviting the appellant before it that it should be able to seek oral evidence under s 359(1) and s 366. However, that informal mechanism is exactly what the High Court has said is available in SZKTI at [47]. Even if the Tribunal did not seek oral evidence, the Tribunal could have sought to clarify whether the appellant had, in fact, received the invitation. To repeat, this is not to suggest that such step is always required of the Tribunal, merely that in certain circumstances it should be taken. The Court considers that a further inquiry of the appellant would have clarified the key issue, that being whether or not there were exceptional circumstances explaining his non-compliance with condition 8202 of his visa. The mere failure of the appellant to reply to the invitation was not evidence that there were no exceptional circumstances. As subsequent facts showed, such failure was because he never received the invitation. The Tribunal was not to know that, but it could have emailed or phoned the appellant to find out with certainty whether there was evidence of exceptional circumstances. Such step would not have posed any difficulty, since the Tribunal held the appellant's email and telephone contact details. Positive contact with the appellant himself could have put beyond any doubt whether there were, in fact, exceptional circumstances. It is absurd to claim in the light of SZKTI that a simple telephone call or email to the appellant to make contact with him did not render such information ' easily ascertainable '.


case_text: appellant acknowledges that Minister for Immigration and Multicultural Affairs v Eschetu [1999] HCA 21 ; (1999) 197 CLR 611 and Minister for Immigration and Citizenship v SZMOK and Others [2009] FCAFC 83 ; (2009) 257 ALR 427 make clear that s 353 and s 357A(3) of the Act are not a source of rights for an applicant, but comprise only ' facultative ' ( Eschetu at [49], [77], [108]-[109], [158] and [179]) or ' exhortative ' ( SZMOK at [13]-[18]) provisions. The appellant submits, however, that while the provisions might not give rise to positive rights for an applicant before the Tribunal, they must be given some meaning, and they must govern the exercise of discretion of the Tribunal. On the basis of this submission the appellant points out that the Tribunal did not explain why the appellant was not contacted by means such as email or telephone. Following from similar considerations outlined in other grounds of appeal, the appellant submits that there was an obligation on the Tribunal to make such further inquiries. The appellant's counsel acknowledges that the issues raised for consideration by the Amended Notice of Appeal were not raised in the hearing before the Federal Magistrate in the precise form currently argued. However, the appellant submits that since the delivery of judgment by the Federal Magistrate, the High Court of Australia has delivered its decisions in SZMOK and in SZKTI which were on 2 July 2009 and on 26 August 2009 respectively, each of which the appellant submits are pertinent to the issues raised by the appeal. In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT , obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court.


case_text: appellant acknowledges that Minister for Immigration and Multicultural Affairs v Eschetu [1999] HCA 21 ; (1999) 197 CLR 611 and Minister for Immigration and Citizenship v SZMOK and Others [2009] FCAFC 83 ; (2009) 257 ALR 427 make clear that s 353 and s 357A(3) of the Act are not a source of rights for an applicant, but comprise only ' facultative ' ( Eschetu at [49], [77], [108]-[109], [158] and [179]) or ' exhortative ' ( SZMOK at [13]-[18]) provisions. The appellant submits, however, that while the provisions might not give rise to positive rights for an applicant before the Tribunal, they must be given some meaning, and they must govern the exercise of discretion of the Tribunal. On the basis of this submission the appellant points out that the Tribunal did not explain why the appellant was not contacted by means such as email or telephone. Following from similar considerations outlined in other grounds of appeal, the appellant submits that there was an obligation on the Tribunal to make such further inquiries.


case_text: detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] - [11] . The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it justly and practicably be cured? If not, where, in all the circumstances, do the interests of justice lie? Overall, the leave will be granted where it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Consideration The Court has considered the matters raised before the Federal Magistrate and is satisfied that the issues now sought to be raised on appeal are different to the issues raised before the Federal Magistrate. The Court, having considered the eight factors referred to in NAJT , will grant leave for the appellant to rely on the new grounds of appeal for the following reasons. In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT , obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court. Finally, as to the issue of prejudice to the respondent, the Minister relied upon Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497 where the majority said ' more than once it has been held by this Court that a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below '. However, Moustakas relates to a situation distinct from the present circumstances. The appeal court described in Moustakas was an appeal court from a first instance trial . In that circumstance, it is far more understandable that a court of appeal would seek to constrain grounds of appeal that could call for more evidence. While this Court is acting as a court of appeal, it is so acting in respect of a decision of the Federal Magistrates Court which itself was acting as a court of judicial review of a Tribunal decision, not a trial court. In that sense, this Court is just as well placed as the Federal Magistrates Court to receive evidence or review the decision of the Tribunal. In the circumstance that this Court is effectively judicially reviewing a decision of the Tribunal, being the practical effect where new grounds are relied upon and no error is shown on the part of the Federal Magistrate, then this Court is in just as good a position as the Federal Magistrates Court to fulfil that role. Consequently, the Court does not believe that Moustakas is apposite in the present circumstances and prefers to rely on the considerations of minimising prejudice discussed in the decision of NAJT .


case_text: is not enough that the Tribunal makes an error, that error must be a jurisdictional error if the decision is to be quashed: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [83]. As outlined above, two alternative grounds of jurisdictional error would appear to be Wednesbury unreasonableness or a constructive failure to exercise jurisdiction in failing to fulfil the role of the Tribunal, that is, to review.


case_text: and finally, the appellant claims that the Tribunal applied the wrong test in determining whether grounds existed for the cancellation of his visa. The appellant submits that rather than form a positive state of satisfaction that there were no exceptional circumstances beyond the appellant's control which explained his non-compliance with condition 8202 as reg 2.43(2)(b)(ii) of the Regulations requires, the Tribunal referred to the discussion in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 ; (2005) 142 FCR 257 at [107] - [116] . That discussion is based on s 137L(1)(b) of the Act which is phrased in different terms to reg 2.43(2)(b)(ii). That section requires an appellant to satisfy the Tribunal that certain circumstances do exist. In contrast, reg 2.43(2)(b)(ii) requires the Tribunal to form a positive state of satisfaction that exceptional circumstances don't exist. The appellant submits that such application of the wrong test constitutes a jurisdictional error. The Minister submits that a Tribunal is not required to make the case for an applicant before it, it is for the applicant to make their submissions: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] . This is undoubtedly correct. However, the inquiry in question would not make the appellant's case for him. Rather, it would seek clarification of the grounds already provided to the delegate, in the circumstance where the delegate's record was wholly unsatisfactory. It is true that the appellant did not reply to the invitation of the Tribunal on these matters. However, the Act, specifically s 359C, envisages the circumstance that no reply is forthcoming and the Tribunal may still need to seek additional information before it should make its decision. This was such a circumstance.


case_text: the circumstances where the appeal has been upheld on grounds that were not before the Federal Magistrate, or at least not before the Federal Magistrate in the form now put, the usual rule that costs follow the event should not apply. This is because there was no fault on the part of the Federal Magistrate in making the decision he did. Rather, the Court considers that each party should pay their own costs of the appeal, similarly to the basis for the costs order in Snedden v Republic of Croatia (No 2) [2009] FCAFC 132. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 5 November 2009 Counsel for the Appellant: Mr Mitchell Solicitor for the Appellant: Mr Miller Counsel for the First Respondent: Mr Kennett Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 21 September 2009 Date of Judgment: 5 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1247.html


case_title: SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14

case_text: the appellant submits that the Tribunal, pursuant to SZJBA v Minister for Immigration and Citizenship and Another [2007] FCA 1592 ; (2007) 164 FCR 14 , was obliged to undertake reasonably open and regular administrative steps to permit or facilitate fulfilment of the ' real and meaningful nature of the invitation to comment ' (at [53]). The appellant submits that such obligation arises where the Tribunal is aware that the record of claims made by an applicant and received by the Tribunal is incomplete. It is submitted by the appellant that the Tribunal was aware of a ' conspicuous absence of any explanation ' of the medical records submitted by the appellant. Thirdly, the appellant submits that, following the submissions in ground one (namely that the Tribunal retains a discretion pursuant to s 359(1) and s 359C of the Act to obtain further information even if a reply to an invitation is not forthcoming), that exercise of discretion is guided by s 353 and s 357A(3) of the Act. Section 353 states: (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case. Section 357A(3) states: (3) In applying this Division, the Tribunal must act in a way that is fair and just.


case_text: detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] - [11] . The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it justly and practicably be cured? If not, where, in all the circumstances, do the interests of justice lie? Overall, the leave will be granted where it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Consideration


case_title: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168

case_text: detailed overview of authority discussing when leave should be granted for new grounds to be argued on appeal is to be found in the decision of Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] - [11] . The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it justly and practicably be cured? If not, where, in all the circumstances, do the interests of justice lie? Overall, the leave will be granted where it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . Consideration The Court notes the prejudice identified by the Minister relating to grounds one, three and four relied upon by the appellant and the assertion that the Minister might have chosen to lead evidence in the Federal Magistrates Court had it been on notice of the grounds as now raised. The Court also notes that the Minister, in supplementary submissions, noted that ground one had been partially raised before the Court below in similar terms to those now put. The Court notes that the Minister was afforded the opportunity to cross-examine the appellant and was also granted the opportunity to adjourn the proceedings in order that it be able to put on further evidence. Such offer was declined. An offer to allow the Minister to cross-examine the appellant on his affidavit in the Court below was also declined by the Minister. In the circumstances, the Court believes the Minister has been given adequate opportunity to rectify any prejudice identified, particularly as this Court is in just as good a position to take evidence to review a decision of the Tribunal as the Federal Magistrates Court. Even if such prejudice is not overcome, the Court considers that it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': VAAC at [26].


case_title: Videto and Another v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167

case_text: Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318 ; (2007) 164 FCR 151 Kenny J at [63] observed: The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J ( Videto ); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ ( Luu v Renevier ); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 364 ; (1990) 21 ALD 139 at 143 per Pincus J ( Detsongjarus ); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ ( Yang ). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. In Videto and Another v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 , Toohey J at 178 said: In such a case [potential deportation] it may be that the material placed before the Minister or his delegate contained some obvious omission or obscurity that needs to be resolved before a decision is made.


case_text: It is necessary, because of the jurisdictional issue raised by the Commission, to set out the questions of law and the grounds of appeal contained in Mr Masliczek's notice of appeal. They are: " 2. QUESTIONS OF LAW RAISED IN THE APPEAL 1.1 Was the Tribunal wrong in law in the methodology it adopted to ascertain whether the applicant was entitled to have the claimed condition of Post Traumatic Stress Disorder (PTSD) accepted as a war related disease. 1.2 Was the Tribunal wrong in law by applying incorrectly or not at all sections 119 , 120 (1) and (3), 120A of the Veterans' Entitlements Act 1986 (Cth) and the decision of Deledio v Repatriation Commission ? [This is a reference to the decision of the Full Court in Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 in which (at 97-98) the Court explained a four step process to be followed by the Tribunal in determining whether the applicant has established a link between his or her operational service and a medical condition which is relied on to support the payment of a pension]. 1.3 Was the Tribunal wrong in law in determining the diagnosis of the condition of post traumatic stress disorder (PTSD) by reference to the statements of principle alone without regard to the expert clinical medical evidence of the psychiatrists who had interviewed the applicant? 1.4 Was the Tribunal wrong in law in failing to apply or to apply correctly all relevant statements of principle for PTSD? 1.5 Was the Tribunal wrong in law in failing to give adequate and proper consideration to the applicant's claim for the condition of osteoarthrosis of the fingers of the right hand in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear? 1.6 Was the Tribunal wrong in law by applying Mines v Repatriation Commission which contradicted the High Court Decisions of Bushell v Repatriation Commission, Byrnes v Repatriation Commission and Repatriation Commission v O'Brian; and the full Federal Court Decisions of Repatriation Commission v Whetton and Deledio and Repatriation Commission ? 1.7 Was the Tribunal wrong in law by failing to provide adequate and sufficient reasons for its findings on material questions of fact and a reference to the evidence or other material on which those findings were based? 3. GROUNDS OF APPEAL 3.1 The Tribunal was wrong in law in the methodology it adopted in ascertaining whether the Applicant was entitled to have the claimed condition of PTSD as a war related disease. 3.1.1 The Tribunal was required to determine first whether the applicant was suffering from PTSD before proceeding to determine if the disease was war service related. 3.1.2 The Tribunal conflated the two questions depriving the Applicant the benefit of the doubt in ascertaining whether he suffered a stressful event during his service. 3.1.3 The test adopted by the Tribunal throughout was that of the balance of probabilities whereas because of his operational service some of the circumstances surrounding the stressful events had to be given the more generous test of a reasonable hypothesis. 3.2 The Tribunal was wrong in law in the application of, or in the failure to apply sections 119 , 120 (1), (3), and 120A of the Veterans' Entitlements Act and the decision of Deledio v Repatriation Commission . 3.2.1 These sections and the decision had application to determine the basis of a reasonable hypothesis whether the applicant had experienced a stressful event. The Tribunal erred in law in failing to apply the sections or the authority. 3.2.3 The Tribunal was required by law only to determine that the injuries claimed were not war caused if it was satisfied beyond reasonable doubt that there were no sufficient grounds for making such a claim (s 120(1) to do so it had to raise the test of a reasonable hypothesis based on all the material before it (s 120(3)). This the Tribunal failed to do. 3.2.4 The Tribunal was wrong in law in requiring the applicant to provide objective evidence that he had encountered the bodies of the children whereas the Tribunal was required to determine whether there was a reasonable hypothesis pointed out by the material that he had encountered the bodies. The Tribunal, although rejecting the event as being neither truthful nor accurate, did not challenge it pursuant to the requirements of s 120(1) , namely disprove it beyond reasonable doubt. 3.2.5 The Tribunal failed to apply s 120(1) to the circumstances of the applicant's case. 3.2.6 It was insufficient for the Tribunal to note that the circumstances of mortar and rocket fire did not accord with official records and that the events were not mentioned to two psychiatrists and to conclude that these were not traumatic events experienced by the applicant. It was not appropriate for the Tribunal to prefer the accuracy to the old official records of the events in relation to the shooting event. The Tribunal was required to ascertain whether the Applicant had been exposed or confronted with a traumatic event regardless of the position of the body or whether or not he had entered the tent. 3.2.7 The Tribunal appears to confuse between what constituted a traumatic event and whether or not the event took place. The Tribunal conflates these two questions to the detriment of the applicant. 3.3 The Tribunal was wrong in law in determining the diagnosis of the condition of post traumatic stress disorder by reference to the statements of principle rather than the clinical evidence of psychiatrists who had interviewed the applicant. 3.3.1 Post traumatic stress disorder was diagnosed by both the psychiatrists commissioned by the Applicant (Dr Cole and Dr Holwill) and the Repatriation Commission psychiatrists (Dr Walton and Dr Gelb). The Tribunal failed to take into consideration these reports and the evidence given. 3.4 The Tribunal was wrong in law in the application of the statements of principle for post traumatic stress disorder. 3.4.1 The Tribunal was required to determine the most favourable of the Statements of principle instead it used the more onerous. 3.4.2 The Tribunal was wrong in law in the standard of proof it adopted in determining whether the applicant met the requirements of the statements of principle for post traumatic stress disorder. 3.5 The Tribunal was wrong in law in failing to give adequate and proper consideration to the applicants claim for the condition of osteoarthrosis of the fingers of the right hand and in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear when there was a loss of hearing to the right side. 3.5.1 The Tribunal failed to provide clear reasons for rejection of osteoarthritis of the fingers of the right hand in which it needed to explain why, pursuant to s 120 of the Act , it was satisfied beyond reasonable doubt that it was not war caused. [The appellant did not press this ground insofar as it dealt with hearing loss]. 3.6 [This ground was not pressed]. 3.7 The Tribunal was wrong in law in failing to provide sufficient and adequate reasons for its decision. 3.7.1 The Tribunal was required to do so pursuant to section 43(2B) of the Administrative Appeals Act ." 18 Once the Tribunal had concluded that the traumatic events described by Mr Masliczek had not occurred and that he was not suffering from PTSD there was no occasion for the Tribunal to embark on the four step process which is outlined Deledio in order to determine whether a non-existent medical condition could be linked to operational service. 19 Mr Masliczek submitted that it was not open to the Tribunal, having regard to the specialist medical evidence, to find that he did not suffer from PTSD. This submission must be rejected. Only one psychiatrist gave oral evidence. That was Dr Walton. Dr Walton made a diagnosis of PTSD on the basis of the bodies' event, the shooting event and the firing event as described by Mr Masliczek. He did not consider that the taxi event or the casualty event were stressful in the necessary sense. Drs Holwill, Cole and Gelb, whose reports were before the Tribunal, also diagnosed PTSD principally on the basis of the bodies' event. As the Tribunal found, this event did not occur. The fifth doctor, Dr Kenny, did not diagnose PTSD. The evidence did not, therefore, compel a finding that Mr Masliczek suffered from PTSD. 20 During oral argument counsel for Mr Masliczek sought to argue that the Tribunal had erred in the manner in which it dealt with the general anxiety and the depressive disorders which it found, in paragraph [36], that Mr Masliczek suffered. He argued that the Tribunal's reasons suggested that these conditions had been found not to be service related because Mr Masliczek had fallen at the third of the Deledio steps: he had not experienced a category 1A or a category 1B stressor as defined in Statements of Principles Nos 101 of 2007 and 27 of 2008. It was argued that, in accordance with the Full Court's decision in Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108 at 123; 131-2, the Tribunal was required to consider whether earlier versions of these instruments, which were in force at the time at which the primary decision on Mr Masliczek's claim was made, might, if applied, have led to a favourable decision. These earlier versions did not contain a requirement that an applicant must have experienced defined stressors during service. The Tribunal had not considered the earlier versions. 23 Grounds 3.5 deals with Mr Masliczek's claim that the osteoarthrosis of the fingers from which he suffers was service related. The Tribunal held that Mr Masliczek did "not satisfy the first step" which was identified in Deledio . 24 In Deledio the Full Court explained the first step as follows (at 97): "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail." 25 The Tribunal noted that Mr Masliczek had attributed his painful fingers to injuries sustained while playing volleyball in Vietnam. It noted the reports of medical examinations conducted shortly after he was discharged from the Army in 1968. Those reports did not detect any injuries to his hand. The Tribunal also considered Mr Masliczek's evidence. The Tribunal determined that "the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by him." This conclusion was open to the Tribunal. None of the material pointed to the necessary connecting hypothesis. 26 Ground 3.7, as developed in argument, directed attention to the way in which the Tribunal had explained (or failed to explain) its reasons relating to Mr Masliczek's general anxiety and depressive disorders and his osteoarthrosis. 30 Paragraph 42 of the Tribunal's reasons has already been examined above at [23] to [25]. The Tribunal has adopted some shorthand expressions such as "the first step from Deledio ". Nonetheless its reasoning processes, as I have earlier summarised them, are sufficiently clear, in my opinion, to satisfy its obligations under s 43(2B) of the AAT Act . 31 The appeal should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 22 October 2008 Counsel for the Appellant: Mr D De Marchi Solicitor for the Appellant: De Marchi and Associates Counsel for the Respondent: Ms J Macdonnell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 October 2008 Date of Judgment: 22 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1535.html


case_text: In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law was not merely a qualifying condition to ground an appeal under s 44 , " but also the subject matter of the appeal itself ... " (Emphasis added).


case_title: Australian Telecommunications Corporation v Lamroglou (1990) 12 AAR 515

case_text: It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added).


case_text: It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "...O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added). 15 In other cases in which the Court has been confronted with this problem and in which it has determined that it might be possible to frame an appropriate question of law, it has done so itself: see, for example, Birdseye . The time may have come, given the clear statements by the Court about the need for properly framed questions of law, now made over many years, for the Court to strike out purported appeals which do not identify questions of law. I would, nonetheless, be prepared, reluctantly, to attempt to frame questions of law in the present case if I considered that the interests of justice so required. I have concluded that they do not because I do not consider that the Tribunal has made any of the errors attributed to it by Mr Masliczek. 16 Grounds 3.1, 3.2, 3.3 and 3.4 deal with the Mr Masliczek's claim insofar as it relies on a diagnosis of PTSD. As already noted the Tribunal found, as a matter of fact, that the traumatic events which Mr Masliczek claimed had given rise to PTSD, either had not occurred or had not occurred in the manner described by him and that they did not give rise to a response of the required intensity.


case_title: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290


case_title: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522


case_title: Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101


case_title: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456


case_text: It is necessary, because of the jurisdictional issue raised by the Commission, to set out the questions of law and the grounds of appeal contained in Mr Masliczek's notice of appeal. They are: " 2. QUESTIONS OF LAW RAISED IN THE APPEAL 1.1 Was the Tribunal wrong in law in the methodology it adopted to ascertain whether the applicant was entitled to have the claimed condition of Post Traumatic Stress Disorder (PTSD) accepted as a war related disease. 1.2 Was the Tribunal wrong in law by applying incorrectly or not at all sections 119 , 120 (1) and (3), 120A of the Veterans' Entitlements Act 1986 (Cth) and the decision of Deledio v Repatriation Commission ? [This is a reference to the decision of the Full Court in Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 in which (at 97-98) the Court explained a four step process to be followed by the Tribunal in determining whether the applicant has established a link between his or her operational service and a medical condition which is relied on to support the payment of a pension]. 1.3 Was the Tribunal wrong in law in determining the diagnosis of the condition of post traumatic stress disorder (PTSD) by reference to the statements of principle alone without regard to the expert clinical medical evidence of the psychiatrists who had interviewed the applicant? 1.4 Was the Tribunal wrong in law in failing to apply or to apply correctly all relevant statements of principle for PTSD? 1.5 Was the Tribunal wrong in law in failing to give adequate and proper consideration to the applicant's claim for the condition of osteoarthrosis of the fingers of the right hand in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear? 1.6 Was the Tribunal wrong in law by applying Mines v Repatriation Commission which contradicted the High Court Decisions of Bushell v Repatriation Commission, Byrnes v Repatriation Commission and Repatriation Commission v O'Brian; and the full Federal Court Decisions of Repatriation Commission v Whetton and Deledio and Repatriation Commission ? 1.7 Was the Tribunal wrong in law by failing to provide adequate and sufficient reasons for its findings on material questions of fact and a reference to the evidence or other material on which those findings were based? 3. GROUNDS OF APPEAL 3.1 The Tribunal was wrong in law in the methodology it adopted in ascertaining whether the Applicant was entitled to have the claimed condition of PTSD as a war related disease. 3.1.1 The Tribunal was required to determine first whether the applicant was suffering from PTSD before proceeding to determine if the disease was war service related. 3.1.2 The Tribunal conflated the two questions depriving the Applicant the benefit of the doubt in ascertaining whether he suffered a stressful event during his service. 3.1.3 The test adopted by the Tribunal throughout was that of the balance of probabilities whereas because of his operational service some of the circumstances surrounding the stressful events had to be given the more generous test of a reasonable hypothesis. 3.2 The Tribunal was wrong in law in the application of, or in the failure to apply sections 119 , 120 (1), (3), and 120A of the Veterans' Entitlements Act and the decision of Deledio v Repatriation Commission . 3.2.1 These sections and the decision had application to determine the basis of a reasonable hypothesis whether the applicant had experienced a stressful event. The Tribunal erred in law in failing to apply the sections or the authority. 3.2.3 The Tribunal was required by law only to determine that the injuries claimed were not war caused if it was satisfied beyond reasonable doubt that there were no sufficient grounds for making such a claim (s 120(1) to do so it had to raise the test of a reasonable hypothesis based on all the material before it (s 120(3)). This the Tribunal failed to do. 3.2.4 The Tribunal was wrong in law in requiring the applicant to provide objective evidence that he had encountered the bodies of the children whereas the Tribunal was required to determine whether there was a reasonable hypothesis pointed out by the material that he had encountered the bodies. The Tribunal, although rejecting the event as being neither truthful nor accurate, did not challenge it pursuant to the requirements of s 120(1) , namely disprove it beyond reasonable doubt. 3.2.5 The Tribunal failed to apply s 120(1) to the circumstances of the applicant's case. 3.2.6 It was insufficient for the Tribunal to note that the circumstances of mortar and rocket fire did not accord with official records and that the events were not mentioned to two psychiatrists and to conclude that these were not traumatic events experienced by the applicant. It was not appropriate for the Tribunal to prefer the accuracy to the old official records of the events in relation to the shooting event. The Tribunal was required to ascertain whether the Applicant had been exposed or confronted with a traumatic event regardless of the position of the body or whether or not he had entered the tent. 3.2.7 The Tribunal appears to confuse between what constituted a traumatic event and whether or not the event took place. The Tribunal conflates these two questions to the detriment of the applicant. 3.3 The Tribunal was wrong in law in determining the diagnosis of the condition of post traumatic stress disorder by reference to the statements of principle rather than the clinical evidence of psychiatrists who had interviewed the applicant. 3.3.1 Post traumatic stress disorder was diagnosed by both the psychiatrists commissioned by the Applicant (Dr Cole and Dr Holwill) and the Repatriation Commission psychiatrists (Dr Walton and Dr Gelb). The Tribunal failed to take into consideration these reports and the evidence given. 3.4 The Tribunal was wrong in law in the application of the statements of principle for post traumatic stress disorder. 3.4.1 The Tribunal was required to determine the most favourable of the Statements of principle instead it used the more onerous. 3.4.2 The Tribunal was wrong in law in the standard of proof it adopted in determining whether the applicant met the requirements of the statements of principle for post traumatic stress disorder. 3.5 The Tribunal was wrong in law in failing to give adequate and proper consideration to the applicants claim for the condition of osteoarthrosis of the fingers of the right hand and in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear when there was a loss of hearing to the right side. 3.5.1 The Tribunal failed to provide clear reasons for rejection of osteoarthritis of the fingers of the right hand in which it needed to explain why, pursuant to s 120 of the Act , it was satisfied beyond reasonable doubt that it was not war caused. [The appellant did not press this ground insofar as it dealt with hearing loss]. 3.6 [This ground was not pressed]. 3.7 The Tribunal was wrong in law in failing to provide sufficient and adequate reasons for its decision. 3.7.1 The Tribunal was required to do so pursuant to section 43(2B) of the Administrative Appeals Act ." 17 In Mines v Repatriation Commission [2004] FCA 1331 ; (2004) 86 ALD 62 Gray J said (at 74) that: "If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation." (Emphasis added) See also Fenner v Repatriation Commission [2007] FCA 406 at [63] ; Repatriation Commission v Hill [2008] FCA 50 at [104] - [106] .


case_text: In Mines v Repatriation Commission [2004] FCA 1331 ; (2004) 86 ALD 62 Gray J said (at 74) that: "If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation." (Emphasis added) See also Fenner v Repatriation Commission [2007] FCA 406 at [63] ; Repatriation Commission v Hill [2008] FCA 50 at [104] - [106] .


case_title: Repatriation Commission v Hill [2008] FCA 50


case_text: During oral argument counsel for Mr Masliczek sought to argue that the Tribunal had erred in the manner in which it dealt with the general anxiety and the depressive disorders which it found, in paragraph [36], that Mr Masliczek suffered. He argued that the Tribunal's reasons suggested that these conditions had been found not to be service related because Mr Masliczek had fallen at the third of the Deledio steps: he had not experienced a category 1A or a category 1B stressor as defined in Statements of Principles Nos 101 of 2007 and 27 of 2008. It was argued that, in accordance with the Full Court's decision in Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108 at 123; 131-2, the Tribunal was required to consider whether earlier versions of these instruments, which were in force at the time at which the primary decision on Mr Masliczek's claim was made, might, if applied, have led to a favourable decision. These earlier versions did not contain a requirement that an applicant must have experienced defined stressors during service. The Tribunal had not considered the earlier versions.


case_text: The Tribunal does not explain why it was that it embarked on a consideration of the general anxiety and depressive disorders from which it found Mr Masliczek to suffer. Counsel for Mr Masliczek (who also appeared for him before the Tribunal) was unable to advise the Court as to whether the Tribunal had been urged to find that Mr Masliczek suffered from these conditions or whether the Tribunal was referred to the Statements of Principles which deal with the conditions. It may be that the Tribunal felt bound to deal with these additional conditions, because of the ruling of the Full Court in Benjamin v Repatriation Commission [2001] FCA 1879 ; (2001) 70 ALD 622 at 633 that the Tribunal is required to consider issues raised by the material and evidence before it, even if an applicant does not articulate a case which is or may be supported by that evidence. 22 The difficulty which confronts Mr Masliczek is that there is no question of law or ground of appeal which raises any issue arising from the Tribunal's treatment of the psychiatric conditions identified in paragraph [36]. No application to amend was made. Had it been it was not bound to succeed because counsel for the Commission indicated that, had such issues been raised, it was likely that it would have filed a notice of contention.


case_text: 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 Affairs (1994) 52 FCR 437. [sic] 4 The submission was made on behalf of the Minister that the grounds in the notice of appeal are each without any particularisation whatsoever. That is true, but it does not seem to me that it would be a fair way to dispose of the appeal just to regard the grounds as so general as to not admit of a comprehensible challenge to the Magistrate's decision. 5 The Minister also approached the task of responding to the appeal in this way. In particular, regard was had to the way in which the Appellant had developed his case before the Federal Magistrates Court. That seems to me to be a very proper stance to take in the circumstances. In that regard, I also take into account the oral submissions which the Appellant made with dignity and succinctness. It was quite apparent from those, that like many persons without formal legal training, he found difficulty in distinguishing between the fact finding role consigned to the Tribunal, the judicial review role consigned to the Federal Magistrates Court, and the role which this Court has in deciding whether a Magistrate erred in law. 6 When one reads ground 2 of the notice of appeal, in conjunction with the case as developed before the Federal Magistrate, it becomes apparent that the particular concern which the Appellant has is that the Federal Magistrate ought to have held that the Tribunal breached s 424A of the Migration Act . In other words, his complaint about a denial of procedural fairness focuses upon whether the Tribunal ought to have put to him in writing for comment particular "information." It is to be remembered that s 422B of the Migration Act provides that the provisions which follow give the relevant procedural fairness content to the obligations which fall on the Tribunal. 13 Ground 4 in the notice of appeal seeks to find error on the part of the Magistrate in not in turn finding error on the part of the Tribunal in applying the principles laid down by a Full Court of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. Though not stated in so many words, I take it, as did the Minister in his submissions, that this is a reference to what might, perhaps inelegantly, be described as the "relocation" principle in refugee law. 14 After Randhawa , the High Court had occasion to consider that particular principle last year in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 81 ALJR 1659. At pages 1664 and 1665, para 26, Gummow, Hayne and Crennan JJ observed in their joint judgment: in particular cases, territorial distinctions may have an apparent connection with the particular reason for the asserted well founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of one nation state so that in some parts there is insufficient basis for a well founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.


case_text: After Randhawa , the High Court had occasion to consider that particular principle last year in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 81 ALJR 1659. At pages 1664 and 1665, para 26, Gummow, Hayne and Crennan JJ observed in their joint judgment: in particular cases, territorial distinctions may have an apparent connection with the particular reason for the asserted well founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of one nation state so that in some parts there is insufficient basis for a well founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.