case_text: As in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 the applicant for the visa did not attend before the Tribunal, despite an invitation to do so. Allsop J there concluded: [29] ...The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason. The same comment may be made in the present appeal. 16 The appeal should thus be dismissed. 17 The orders of the Court are: 1. Appeal dismissed. 2. The Appellants to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 3 March 2008 The First Appellant: Self-represented Solicitor for the Respondent: M Mafessanti (Clayton Utz) Date of Hearing: 3 March 2008 Date of Judgment: 3 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/210.html


case_outcome: followed

case_text: No question of any breach of s 424A , in such circumstances, arises for resolution: SZIDH v Minister for Immigration & Citizenship [2007] FCA 369. In the present case, as in SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78: [23] ...the Tribunal was identifying the deficiencies or inadequacies in the appellant's case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1)....


case_title: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 , 206 ALR 471

case_text: No question arises in the present proceedings of the Tribunal ascribing to particular information provided by an applicant a significance or relevance of which an applicant may have been unaware: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [26] [28], [2004] FCAFC 123 ; 206 ALR 471 at 477 8 per Finn and Stone JJ. And no question arises as to a particular significance or relevance being attached to " information " provided to the Tribunal, as opposed to " information " provided for the purposes of the visa application: Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 , 110 FCR 27. The " reason " for the Tribunal's decision was simply the inadequacy of any of the materials provided by the now Appellant. The Tribunal thus concluded: The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is "well founded" or is for the reason claimed. It remains for the first named applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making the relevant facts of the individual case will have to be supplied by the applicants themselves in as much detail as is necessary to enable the decision maker to establish the relevant facts. The Tribunal is not required to make the applicants' case for them. Nor is the Tribunal required to accept uncritically any and all of the allegations made by applicants. ( MIEA v Guo & Anor [1997] HCA 22 ; (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470 ; (1992) 38 FCR 191 , Prasad v MIEA [1985] FCA 47 ; (1985) 6 FCR 155 at 169-70.) The first named applicant did not attend the hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms. The Tribunal was unable to explore with the first named applicant who the "antisocial elements' were that threatened him, when he was threatened, how he was threatened, whether he reported the threats to the police and, if so, what action the police took, who the people were he suspects attacked him, when he was attacked, how he was attacked, whether there were any witnesses present, whether he reported the attack to the police and, if so, what action the police took, whether he had considered relocation within India and what is likely to happen to him if he were to return to India in the foreseeable future. The information that the first named applicant has submitted does not provide the necessary detail for the Tribunal to be satisfied as to the veracity of his claims or that he has a well founded fear of persecution. Further the Tribunal has not been able to discuss with the first named applicant independent country information which may be relevant to his particular claims. In these circumstances the Tribunal is unable to be satisfied that the first named applicant has a well founded fear of persecution for reasons of his political opinion or any other Convention based reason.


case_outcome: cited

case_title: Kim v Witton (1995) 59 FCR 258

case_text: Her Honour described the application as no more than an application seeking merits review, and as one not disclosing any jurisdictional error on the part of the Tribunal. She said that the findings of the Tribunal that there had been a breach of Condition 8101 were open to the Tribunal, by a combination of what the applicant said he had been doing and what he had said to the delegate, so that the activity at Stonemasons was one that normally attracts reimbursement (cf Kim v Witton (1995) 59 FCR 258 at 268). Her Honour also concluded that the Tribunal's finding that the reasons for not cancelling the visa did not outweigh the reason for cancelling the visa was open to it on the material before it. 27 Consequently, the Tribunal decision was not infected by jurisdictional error and the application to the Federal Magistrates Court was dismissed. 28 The present application is supported by an affidavit of the applicant to which is annexed proposed grounds of appeal. There is substantial overlap in what is said in each of those documents.


case_outcome: considered

case_text: In Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71, Gray J at 90-92 addressed the question whether the decision-maker in exercising the discretion under s 116(1) of the Act was bound to comply with the directions in a Migration Series Instruction. His Honour in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43 , in a different factual context, decided that the prescriptions in a Policy Advice Manual published also under s 499 of the Act were not binding, and so were not relevant considerations to a decision-maker as that expression is explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. By reason of the decision in Sandoval , I think it is arguable that at least the primary considerations in the Migration Series Manual referred to at [16] above were required to be addressed by the Tribunal.


case_title: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCA 43


case_title: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24


case_text: I should note that the arguable ground of jurisdictional error on the part of the Tribunal was not explicitly identified before the Federal Magistrate. It emerged in the course of submissions on this application, prompted by a general reference in the proposed notice of appeal to the decision of the Tribunal being unfair and not carefully considered. I am mindful of the observations of the Full Court in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18] about the circumstances in which a new or refined proposed ground of appeal should be allowed in such circumstances, but as the applicant was not represented and because the Federal Magistrate was asked to consider generally the way in which the Tribunal had exercised its discretion under s 116(1), I think this is a case in which the point should be allowed to be considered on appeal. 44 I will hear the parties as to how the appeal should now progress. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 10 May 2007 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr B Cramer Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 8 May 2007 Date of Judgment: 11 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/691.html


case_outcome: referred to

case_text: It is now well established that the Court has power to impose a fine for contempt of Court: see s 31 of the Federal Court of Australia Act 1976 (Cth) and Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 ; BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 ; Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156 ; Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129.


case_text: In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 Tamberlin J described the rationale behind the power to punish for contempt as follows: "Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts." 6 Having regard to these principles I turn to the determination of the appropriate penalty.


case_text: In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 , Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court (at 501-502): • The contemnor's personal circumstances; • The nature and circumstances of the contempt; • The effect of the contempt on the administration of justice; • The contemnor's culpability; • The need to deter the contemnor and others from repeating contempt; • The absence or presence of a prior conviction for contempt; • The contemnor's financial means; • Whether the contemnor has exhibited general contrition and made a full and ample apology; • Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and • Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.


case_title: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537


case_text: It is now well established that the Court has power to impose a fine for contempt of Court: see s 31 of the Federal Court of Australia Act 1976 (Cth) and Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 ; BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 ; Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156 ; Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129. 16 The applicant seeks its costs of its motion for contempt dated 22 November 2007 on an indemnity basis on the ground that it brought the application to vindicate the authority of the Court. The Courts have recognised that parties who prosecute contempt proceedings are performing a public duty and that it is appropriate that a costs order be made so they are not out of pocket: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336.


case_text: As the principal proceeding was a matter arising under the WR Act it is necessary to consider whether the contempt proceeding was also a matter arising under that Act, in which case s 824 would prevent the Court from ordering Mr Morrison and/or Morrison Clothing from paying the applicant's costs of the motion. It is well established that a motion for contempt is separate and distinct from the principal proceeding: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 at 151 referring to O'Shea v O'Shea (1890) 15 PD 59. In National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109 ; (1999) 91 FCR 513 the National Union of Workers appealed against a finding of contempt by Smart J of the Supreme Court of New South Wales. A Full Court of this Court said (at 522 523) that the contempt proceeding was not a matter arising under the WR Act , and therefore s 347 (the predecessor of s 824) did not stand in the way of a costs order. See also Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220 at 235 and Gregory v Philip Morris Ltd (1987) 74 ALR 300 at 308. It is clear on the authorities that s 824 of the WR Act does not apply to contempt proceedings.


case_title: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494


case_title: National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109 ; (1999) 91 FCR 513


case_title: Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137


case_title: Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150


case_title: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129


case_text: On 5 September 2008 I found that the respondent, Morrison Country Clothing Australia Pty Ltd ("Morrison Clothing"), and Mr Brian Morrison had committed contempt of Court by failing to comply with paragraph 1 of the orders I made on 28 September 2007 ("the Order"): see Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd [2008] FCA 604. These reasons should be read in conjunction with those in Morrison . 2 Mr Morrison is the sole director, company secretary and sole shareholder of Morrison Clothing. The Order required Mr Morrison, both on his own behalf and on behalf of Morrison Clothing, to give discovery of the documents requested by the applicant (in its Request for Categories of Documents to be Discovered dated 9 August 2007) by serving a list of documents required to be disclosed and an affidavit verifying the list of documents on or before 19 October 2007. I concluded that the brief affidavit filed by Mr Morrison did not comply with the Order and that Mr Morrison's conduct was not merely casual, accidental or unintentional but constituted wilful disobedience of the Court's order. 3 The applicant seeks an order that Mr Morrison be fined $50,000.00 for his contempt. No penalty is sought against Morrison Clothing, which is now in liquidation.


case_text: In the principal proceeding, the applicant sought the imposition of penalties against Morrison Clothing pursuant to s 719 of the Workplace Relations Act 1996 (Cth) ("the WR Act ") for breaches of clauses 46 and 48 of the Clothing Trades Award 1999 . Clauses 46 and 48 regulate the terms and conditions of outworkers. The Award is intended to regulate the use of outworkers in the clothing industry to ensure that outworkers receive their minimum entitlements. The relevant provisions of the Award were specifically designed to remedy the exploitation of this vulnerable group of workers: see Clothing Trades Award 1982 Print R2749 and cf the observations of Marshall J in Textile Clothing and Footwear Union of Australia v Southern Cross Clothing Pty Ltd [2006] FCA 325 . 13 The applicant claimed, inter alia, that Morrison Clothing had utilised outworkers but had not provided the minimum wages and conditions provided for in the Award or kept all of the requisite work records. The work records of Morrison Clothing are essential for the applicant to prove its case. The failure of Mr Morrison to provide discovery of the work records has severely limited the ability of the applicant to continue the proceedings. As the applicant submits, if Mr Morrison is permitted to ignore the Order he is able to circumvent the outworkers' regulatory regime. In those circumstances, and particularly in light of the objectives of that regime, the amount of the penalty should be sufficient to deter Mr Morrison and others from conduct designed to circumvent the legislative protections which are provided for outworkers. 14 For the forgoing reasons, I consider that it is appropriate that Mr Morrison be fined $10,000.00.


case_title: Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220


case_text: Whilst Order 15A makes no provision as to the means whereby discovery should be given by a party such as the Minister to a party such as Telstra, it seems clear to me that discovery must be given in the manner for which Order 15 rule 2(2) provides, namely: '2(2) Unless the Court or a Judge orders otherwise, a party must give discovery by serving: (a) a list of documents required to be disclosed; and (b) an affidavit verifying the list.' Mansfield J expressed the same view in Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 at [2] . 10 The form of the list of documents may, in my opinion, be taken to have been regulated by Order 15 rule 6, which relevantly provides: '6(1) A list of documents required by or under this Order shall, unless the Court otherwise orders, be in accordance with Form 22 and conform to the requirements of this rule. (2) A list of documents shall enumerate the documents which are ... in the possession ... of the party making the list. (3) A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified. ... (8) Where a party making a list of documents has a solicitor in the proceeding, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.' 11 Form 22, of course, provides for documents to be enumerated one by one in either Schedule 1 Part 1, Schedule 1 Part 2 or Schedule 2 of the relevant list. The operative words in Form 22 are: '1. The party has in his possession ... the documents enumerated in Schedule 1. 2. The documents enumerated in Part 2 of Schedule 1 are privileged from production on the ground ... ...'


case_outcome: applied

case_text: In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 ('Tyco') Hill J said at [44] [46]: '44 While there is nothing in the procedural requirements of O 15A, r 9 that deal with the filing by a respondent to an application for pre-action discovery of affidavit evidence in opposition, it has never been suggested that such affidavits could not be filed. One example where affidavits were filed was Conrock Ltd v CSR Ltd (1990) 96 ALR 690. In that case, Pincus J finally made no order for costs against the respondent, notwithstanding that the applicant was successful. The affidavits went to the question of confidentiality of documents as well as a claim that compliance with the pre-action discovery would be oppressive and onerous. In Legent Corp v Fundi Software Services Pty Ltd (unreported, Federal Court, Lockhart J, No G134 of 1992, 13 July 1992), affidavit evidence was filed by both the applicant and respondent and cross-examination was foreshadowed. However, the matter settled. Justice Lockhart observed (at 7) that the parties could not necessarily assume that they would have a right to cross-examine. His Honour cites no authority for this proposition. Perhaps what his Honour meant was that the Court would control, in its discretion, the extent of cross-examination, having regard to the issue between the parties. One can only speculate. 45 It would seem, also, that notices to produce have been issued in other pre-action discovery proceedings. It seems that Gummow J in Aitken v Neville Jeffress Pidler Pty Ltd (1991) 33 FCR 418 allowed the issue of a notice to produce and that it was answered. Likewise, it would seem that a notice to produce was issued in Legent and in CGU [ CGU Insurance Ltd v Malaysia International Shipping Corp Berhad [2001] FCA 681] . It is not clear from the report of Aitken or Legent that any argument was directed at the question whether a notice to produce could issue and in those circumstances it is difficult to treat these cases as authority for the view that there is power to issue a notice. On the other hand, it is perhaps not irrelevant that it is only since CCA Beverages [ CCA Beverages (Adelaide) Ltd v Hansford (unreported Federal Court, S G58 of 1991, O'Loughlin J, 15 November 1991)] that there was thought to be a difficulty with that power. 46 However, for the reasons I have given, I am of the view that there is power to issue, in an appropriate case, a notice to produce in pre-action discovery proceedings. Whether the notice should be confined clearly depends upon the issues that are said to arise and in respect of which the production of documents is sought. An applicant who seeks to use a notice to produce, in effect, to gain production of the very documents which are the subject of the pre-action discovery will not have given the notice to produce in good faith, but rather, will have acted in a way that is an abuse of process. Otherwise, in principle at least, the notice to produce procedure may be exercised by both parties if otherwise relevant to issues in dispute. However, I would emphasise that it clearly is not contemplated that a pre-action discovery proceeding become a full-blown factual contest between the parties. The judge hearing the application will, no doubt, confine cross-examination and examine the subject matter of any notice to produce to ensure this does not become the case.' 24 Hely J recorded his general agreement with Hill J's reasons. At [54] his Honour said: 'Contestable issues of fact may arise in proceedings under O 15A for preliminary discovery: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147. There is no reason why the ordinary interlocutory procedures should not be available to assist in the resolution of those contestable issues of fact, subject to the overriding consideration that the invocation of those procedures does not amount to an abuse of the process of the Court: Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210. Thus, at least prima facie, it would be an abuse of process for an applicant for preliminary discovery to seek to compel the production of documents by notice to produce, when the production of those documents is sought under O 15A, r 6. But it does not follow, for example, that a subpoena sought to be issued by an applicant for preliminary discovery against a third party would necessarily be an abuse, depending upon the scope and purpose of the subpoena.' 25 It may be seen from what has been said above that the Minister's Notice to Produce served on Telstra could hardly amount to an abuse of process in the sense indicated in the passages from Tyco quoted above. A potential abuse of process might have arisen were Telstra to have issued a Notice to Produce to the Minister requiring the production of the very documents which a discovery order may identify. 26 Telstra's objection to the Minister's Notice to Produce urged that 'none of the documents sought in the Notice are relevant to the issues in the present proceeding'. 27 The Minister's original Notice to Produce dated 10 August 2007 called for the production of documents covered by 16 separate paragraphs. By a Notice of Motion filed 14 August 2007 Telstra sought an order that the initial Notice to Produce dated 10 August 2007 be set aside.


case_text: In support of its proposed redefinition of paragraphs 9 10 in the Minister's third Notice to Produce dated 22 August 2007, Telstra relied upon the decision of Lindgren J in Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391 ('Alphapharm'). 41 Eli Lilly Australia Pty Limited apparently wrote a letter dated 16 April 1996 to pharmacists throughout Australia in relation to Alphapharm Pty Limited's anti-depressant drug 'Zactin' and Eli Lilly Australia Pty Limited's competing anti-depressant drug 'Prozac', which had been on the market for a much longer time than Zactin. Alphapharm Pty Limited complained to Eli Lilly Australia Pty Limited about the letter. Eli Lilly Australia Pty Limited's solicitors responded to the effect that their client had in its possession material which fully supported the allegations. This led Alphapharm Pty Limited to apply for an order pursuant to Order 15A rule 6 of the Rules for discovery by Eli Lilly Australia Pty Limited of such material so that Alphapharm Pty Limited would be able to decide whether to commence a proceeding in the Court against Eli Lilly Australia Pty Limited alleging that the letter was misleading or deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth). 42 In his reasons for judgment Lindgren J made certain observations concerning Order 15A rule 6 as follows: '1. Paragraphs 6 (a) and 6 (c) pose an objective test, the opening words "there is" in each paragraph signifying "there exists"; but the "insufficiency test" of para 6 (b) has both subjective and objective aspects. 2. Although I need not explore the subjective aspect fully, it seems clear that if the evidence went so far as to show that a particular applicant was already able to decide to commence a proceeding by, for example, showing that the applicant had in fact decided to do so, para 6 (b) would not be satisfied even though the information available did not satisfy the objective aspect of the insufficiency test referred to below. 3. The fact that a particular applicant genuinely feels unable, because of a lack of information, to decide to commence a proceeding does not, without more, satisfy para 6 (b); the objective aspect of the paragraph requires it to be shown as an objective fact that the applicant lacks "sufficient information to enable a decision to be made whether to commence a proceeding". 4. In my view, the objective aspect of para 6 (b) invokes a notion of "reasonable sufficiency", the question raised being whether it is reasonable that the applicant for an order be required to take its decision without having the information to become available from inspection of the document or documents of which discovery is sought. 5. If the insufficiency test is satisfied, a second question will arise, namely, whether the Court's discretion should be exercised in favour of the making of an order. 6. The questions posed by rule 6 and referred to above are to be answered in the context of an adversary system of forensic contest in which a proposed respondent is ordinarily entitled to withhold its evidence, certainly prior to the commencement of proceedings. 7. The questions are also to be answered in the light of the nature of the "cause of action" contemplated and the range of information potentially available in respect of a cause of action of that kind. 8. Contrary to a submission of Eli Lilly, in my opinion rule 6 is not necessarily rendered unavailable by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief. This is made clear by the reference in para (a) to the existence of "reasonable cause to believe that the applicant has ... the right to obtain relief ..." (emphasis supplied). It would impose an artificial constraint on rule 6 , not supported by its terms or purpose, to exclude, a priori , all cases in which the insufficiency of the information possessed by the applicant to enable a decision to be made whether to litigate is due to a matter of "defence" which would defeat the prima facie case. 9. Rule 6 does not provide a means by which an applicant will be enabled to have available to it every document which would assist it in deciding whether to litigate. If that were the intention, paras (a) and (c) would stand alone and the additional condition set out in para (b) would not be necessary. 10. Paragraph 6 (b) contemplates that after making all reasonable inquiries, the applicant has come up against a problem, namely, that it is lacking a piece of information or pieces of information reasonably necessary to enable it to decide whether to commence a proceeding.' 43 As I understood Telstra's submission, it contended that production of a document could be required if it showed that a decision had in fact been made by it to commence a proceeding against the Minister or the Commonwealth to obtain relief in the Court. It asserted that production could not be required of documents recording or referring to consideration by Telstra as to whether it should commence a legal challenge or legal proceedings, but it acknowledged that documents recording or referring to its ability to decide whether to commence such a challenge or proceedings would properly be amenable to a Notice to Produce calling for their production. 44 It seems to me that an assertion that a subpoena and/or a notice to produce should be set aside if it calls for the production of documents which do not answer the description of being 'relevant', involves a misconception as to what the proper function of a subpoena and/or notice to produce is. 57 Given the terms of Mr Smith's affidavit sworn 2 August 2007, upon which Telstra intends to rely on the hearing of its Amended Application under Order 15A rule 6 , I consider the documents identified in the said paragraphs to have sufficient apparent relevance to be amenable to a notice to produce at this stage. Senior counsel for Telstra was at pains to explain that much of what was contained in Mr Smith's affidavit was there simply to provide background and had only tangential relevance. This cri de coeur does not mean that the Minister may not challenge the factual background which is relevant to those issues which need to be addressed objectively and/or subjectively on the hearing of the Order 15A rule 6 application and to which Lindgren J made reference in Alphapharm . 58 As to the scope of the requirement imposed by the said paragraphs, it is appropriate to observe that the Minister's third Notice to Produce dated 22 August 2007 is significantly scaled down from the requirement sought to be imposed by the Minister's second Notice to Produce dated 17 August 2007. Plainly, the Minister has had regard to much of the material to which Mr Healy deposed in his affidavit sworn 20 August 2007 in narrowing down her requirement. In his affidavit sworn 20 August 2007 Mr Healy said, inter alia: '2 I am informed by Paul Smith, Business Development Manager employed by Telstra, and believe that: ... (b) having regard to the 12 categories of documents of which production is sought, in order to comply with the Notice, Telstra would be required to review a very large number of documents in Telstra's possession that refer or relate to the Broadband Connect Infrastructure Program ( Program ) to determine which of those documents fall within the terms of the Notice. The following facts are relevant: (i) Mr Smith has in his email mailbox approximately 2,200 emails, 1 to 2 boxes of hard copy documents and 200 electronic documents all of which relate to the Program; (ii) there were approximately 10 other Telstra employees who formed the core team responsible for developing Telstra's proposal in relation to the Program; (iii) there were approximately 60 other Telstra employees who had input into Telstra's proposal (not including members of the Telstra Executive Team who are considered below); (iv) The Telstra employees who had input into Telstra's proposal were located in offices in at least Sydney (4 buildings), Brisbane (2 buildings), Melbourne (3 buildings), Adelaide (1 building), Perth (1 building), Canberra (1 building) and Darwin (1 building); and (v) a number of the Telstra employees who had input into Telstra's proposal no longer work for Telstra; (c) in order to comply with category 1 of the Notice, Telstra would be required to review at least all documents in Telstra's possession held by: (i) the 4 Telstra employees who attended the Industry Briefing; (ii) the at least 13 additional Telstra employees who Mr Smith informed of the Industry Briefing; (iii) any other Telstra employees who were informed of the Industry Briefing, including by any of the persons referred to in (i) and (ii) above, that refer or relate to the Program from 27 September 2006 onwards to determine which documents record communications within Telstra "relating to" the Industry Briefing between Telstra and DCITA on 27 September 2006, or record "any decisions made by Telstra resulting from" that Briefing. This is necessary because: ● of the breadth of the phrase "relating to" in sub-paragraph (a) of category 1; ● category 1 is not limited to documents in the possession of certain persons within Telstra; and ● category 1 is not limited to any date range other than being "after" 27 September 2006; (d) in order to comply with category 2 of the Notice, Telstra would be required to review all documents referring or relating to the Program which are in the possession of at least: (i) Mr Smith; (ii) the other Telstra employees who formed the core team responsible for developing Telstra's proposal in relation to the Program, from at least 21 September 2006 (when the Guidelines in relation to the Program were released) until at least 18 June 2007 when Telstra received the letter dated 18 June 2007 from the Respondent advising Telstra that its bid had been unsuccessful for reasons including coverage; and (e) in order to comply with category 8 of the Notice, Telstra would be required to review at least all documents in Telstra's possession held by: (i) Mr Smith; (ii) the at least 11 persons whom Mr Smith either immediately forwarded a copy of DCITA's letter of 18 June 2007 to, or discussed the letter with; (iii) the 3 Telstra employees Mr Smith is aware received a copy (other than directly from him) of DCITA's letter of 18 June 2007; (iv) any other Telstra employees who received a copy of, or were informed of the contents of, DCITA's letter of 18 June 2007, including by any of the persons referred to in (ii) and (iii) above, for the period from 18 June 2007 onwards to determine whether a document records "a consideration" by Telstra of DCITA's letter of 18 June 2007.' 59 It may be observed that the Minister's third Notice to Produce (Ex AM2) has introduced time frames limiting the documents, the production of which has been sought, and also confining the documents sought to ones recording communications and consideration at the level of what Mr Healy described as 'core team' members and/or members of Telstra's 'Executive Team' and above.


case_text: As Moffitt P, with whose judgment Hutley and Glass JJA agreed, said in Waind v Hill and National Employers' Mutual General Association Ltd. (1978) 1 NSWLR 376 ('Waind's case') at 381 there are three steps involved in dealing with subpoenas and documents that may be produced thereunder. At p381 Moffitt P said: 'As Jordan C.J. pointed out in Small's case [The Commissioner for Railways v Small (1938) 38 SR (NSW) 564] and, as appears in Burchard's case [Burchard v Macfarlane [1891] 2 QB 241] there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.'


case_text: Once documents have been produced to the court, any objections to their production having been rejected, the documents are in the control of the court. At this stage the person producing the documents may state that he objects to them being handed to a party seeking access to them for inspection. Documents should not go beyond the judge against the objection of the owner, unless there is valid reason to do so. Subject to matters such as confidentiality, it is for the judge, as part of the second step, to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event the judge will permit inspection by one or both parties at an appropriate time. The question of their admissibility without more, in accordance with the rules of evidence, does not then arise (per Moffitt P in Waind's case at 382 385 cf per Sackville J in Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6] ). 48 The ultimate question of whether any documents are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. As part of the second step inspection may be allowed, notwithstanding that a given document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross-examination (per Moffitt P in Waind's case at 385). 49 If a person wishes to resist production to the court of documents under a subpoena or in response to a notice to produce, objection should be taken as part of what Moffitt P describes as 'the first step'. Available grounds for objection to production include: (a) that the documents called for are the documents of title of the party burdened with production; (b) that the documents are privileged from production on the ground of self-incrimination; (c) that the documents are privileged from production on the ground of legal professional privilege; (d) that the documents are required for some spurious purpose unconnected with the litigation; (e) that the subpoena or notice to produce is oppressive in the sense that it is so wide as to impose an onerous task on the party burdened with production to collect and produce documents, many of which could have no apparent relevance to the litigation.


case_title: The Commissioner for Railways v Small (1938) 38 SR (NSW) 564


case_text: July 2007, a delegate of the Minister decided to cancel Mr Aporo's visa under s 501 of the Act on the basis that he did not pass the character test. Mr Aporo was advised of this decision on 26 July 2007. Mr Aporo applied for review of the delegate's decision, which the Administrative Appeals Tribunal ('the Tribunal') affirmed ('the first Tribunal'). Mr Aporo appealed to the Federal Court which made orders in the nature of certiorari and mandamus quashing the decision of the first Tribunal and remitting the matter to the Tribunal to be heard and determined according to law ( Aporo v Minister for Immigration and Citizenship [2008] FCA 102 per Rares J). The hearing by the Tribunal ('the second Tribunal') on remittal took place on 1 July 2008. Mr Aporo was represented by experienced counsel. The decision to cancel his visa was affirmed by the second Tribunal on 18 July 2008. THE TRIBUNAL DECISIONS The first Tribunal decision The first Tribunal set out the law and the facts in some detail, including Mr Aporo's personal history. The Tribunal noted at [23] that Mr Aporo was diagnosed with dyslexia only a few years previously. After considering the evidence of the supporting witnesses, the first Tribunal turned to the psychiatric evidence, in particular a report provided by Dr Gary Banks, Consultant Clinical Psychologist, based on an interview and assessment sessions that Dr Banks conducted with Mr Aporo on 28 September 2007 lasting approximately four hours. Dr Banks was unavailable to give oral evidence at the hearing before the first Tribunal. Despite the submission by the Minister that Dr Banks' report should be given less weight because he was not available for cross-examination, the Tribunal said (at [44]) that the report was not controversial ' in that [Dr Banks] merely concludes that Mr Aporo needs to commit to intense rehabilitative treatment and that previous attempts toward his rehabilitation have been unsuccessful. I think that is a point on which both parties would agree '. As the first Tribunal noted at [44], Dr Banks' report goes no further than to suggest that rehabilitation is needed and that deportation may inhibit such rehabilitation. The first Tribunal's conclusion on the psychiatric evidence was (at [45]): I accept that the Applicant would benefit from the suggestions made by Dr Banks, however, the report gives minimal attention to the fact that the Applicant has had the past 18 years to reflect upon his behaviour and to modify it accordingly. The evidence is that the Applicant has yet to fully commit to completely rehabilitating. Dr Bank's [sic] report merely outlines options for the Applicant if he were to display such commitment.


case_text: Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345 the Full Court dealt with a case where it was common ground that, because of convictions for a number of criminal offences, the appellant did not pass the character test. The issue there, as here, was whether the exercise of discretion by the Tribunal in its task of reviewing on the merits the decision of the Minister's delegate, miscarried. The Full Court pointed out at [4] that the Court's jurisdiction is derived from s 476A(1)(b) and (2) of the Act which have the effect of conferring on the Court jurisdiction the same as that of the High Court under s 75(v) of the Constitution in relation to, in this case, a decision of the Tribunal of the kind in question by reason of s 483 of the Act. In order to succeed the applicant has to demonstrate jurisdictional error on the part of the Tribunal. Even if the Tribunal were in error in respect of the minor matters relied upon by Mr Aporo, such as whether or not his half-brother and mother supported his claims of childhood abuse, such error did not go to the jurisdiction that the Tribunal was exercising in relation to s 501 of the Act. As in Cockrell , there was nothing to suggest that the Tribunal misunderstood the scope or ambit of the statutory jurisdiction or power, or misunderstood any statements or directives in Ministerial Direction No 21. The Tribunal determined for itself the factors necessary to make a decision in Mr Aporo's case. There was nothing to indicate that the Tribunal misunderstood its task or made an error of any significance in the way in which it approached its task. In reading the Tribunal's decision as a whole, it is apparent that the Tribunal correctly considered the question before it and the nature of the discretion it was called upon to exercise. Mr Aporo has failed to establish any of the grounds of his application. It follows that his application should be dismissed with costs. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 12 February 2009 Counsel for the Applicant: Mr J Mitchell (pro bono) Counsel for the First Respondent: Ms L Clegg Solicitor for the First Respondent: Clayton Utz Date of Hearing: 15 December 2008 Date of Judgment: 12 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/79.html


case_text: Aporo had a reasonable opportunity to ascertain and respond to the determinative issues that arose ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 590-591). Indeed, the Tribunal makes it clear that it addressed the evidence put forward by Mr Aporo in relation to each of the issues. The Tribunal's findings of which he complains were findings upon matters advanced by Mr Aporo to the Tribunal. The Tribunal did not make findings of fact as to which there was no evidence advanced by Mr Aporo or no submissions made. It follows that Mr Aporo was given the opportunity to address the issues. Mr Aporo complains about the inferences and conclusions drawn from his evidence. This does not amount to a denial of procedural fairness. Mr Aporo does not point to material that had been supplied by or known to the Tribunal from which a conclusion was drawn that was not open on that material, even if he did not like the conclusion reached ( Alphaone at 591-2). Mr Aporo's reliance again on the ' distinct forensic disadvantage due to his illiteracy and dyslexia ' is answered by the fact of legal representation. The Tribunal was entitled to assume that counsel was properly instructed and, indeed, it is not suggested that this was not the case. Mr Aporo says that the Tribunal's conclusions were arbitrary and based on speculation. As I read the decision, the Tribunal's conclusions were based upon the evidence that it set out and were responsive to the submissions made. Mr Aporo says that the Tribunal's conclusions were based upon its own observations, expertise or experience. That allegation is not made out. The Tribunal based its conclusions on the evidence and on the reports which were before it. There was apparently no challenge in the Tribunal to Mr Aporo's criminal record.


case_text: Aporo's grounds raise various criticisms of the decision of the delegate. The function of the Court is to review the Tribunal decision. Complaints about the conduct of the delegate are not relevant to this application. The Court has no power to review the delegate's decision. The Tribunal conducted a full merits review and for that reason the conduct of the delegate, if it were deficient, was rectified ( Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] per Wilcox J, with whom Conti and Stone JJ agreed). I shall consider the grounds of the application to the extent that they concern the second Tribunal's decision. I shall now simply refer to the second Tribunal as the Tribunal.


case_text: Aporo's submissions are, in summary, as follows: the principles of natural justice must be applied flexibly and the demands of natural justice are dependent upon the factual circumstances of each case ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 612); Mr Aporo was at a distinct forensic disadvantage due to his illiteracy and dyslexia. The hearing was the only opportunity for him to address adverse inferences that could be drawn from his criminal record and history of drug addiction; the Tribunal was aware of his disability and did not read to him excerpts from any of the documents that formed the basis of its appraisals. He was thereby denied a reasonable opportunity to address the documents and inferences drawn from them; the issues that were collectively determinative of his claims, as summarised above at [73], were not raised at the hearing by the Tribunal or the Minister; in those circumstances, it was procedurally unfair to Mr Aporo for the Tribunal in its findings to attribute weight selectively to documentary material in a manner that was ' in substantial respects unreasoned, perverse and in respect to the witness statement, plainly misconceived '. Mr Aporo takes each comment and finding made by the Tribunal, together with the criticisms he raises in his application and complains that they were not raised with him at the hearing and were collectively determinative of the Tribunal decision. The matters so relied upon are individually very different. Some are factual findings of the Tribunal, some are observations of the Tribunal, some are criticisms raised by Mr Aporo now cited as established fact. I deal with these matters elsewhere in these reasons where they are repeatedly raised. In summary:


case_title: Luu v Renevier (1989) 91 ALR 39

case_text: Aporo says that the Tribunal was not obliged to consider an estimate of the likelihood of recidivism as a criterion under Ministerial Direction No 21 (at [2.10]). He submits that, in circumstances where expert evidence as to the risk of recidivism is inadequate, it was unreasonable for the Tribunal not to hold a further inquiry of readily available information regarding that issue ( Luu v Renevier (1989) 91 ALR 39 at 47 8 and 50). The Tribunal had before it Mr Murdoch's report, the Villawood assessment as outlined by Mr Aporo, as well as comments by Grove J concerning recidivism. There was, unlike Luu , a foundation for the Tribunal's conclusion. Dr Banks' report discussed the general question of recidivism which the Tribunal also took into account, although he did not give a present estimate of likelihood. In those circumstances, the Tribunal was not obliged to make a case for Mr Aporo ( Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] ).


case_text: Tribunal had before it Mr Murdoch's report, the Villawood assessment as outlined by Mr Aporo, as well as comments by Grove J concerning recidivism. There was, unlike Luu , a foundation for the Tribunal's conclusion. Dr Banks' report discussed the general question of recidivism which the Tribunal also took into account, although he did not give a present estimate of likelihood. In those circumstances, the Tribunal was not obliged to make a case for Mr Aporo ( Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 at [60] ). Mr Aporo relies on SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14 at [53] [56]. In that case Allsop J considered a circumstance in which the Tribunal relied upon the fact that an appellant failed to submit a response to the invitation to make submissions when in fact the Tribunal had received a cover sheet stating that submissions were enclosed even though, apparently by mistake, they were not. The appellant submitted that in those circumstances the Tribunal should have made inquiries about the missing enclosure and the comments the appellant intended to make, as it was on notice that the enclosure had been forwarded. Justice Allsop accepted the ' straightforward recognition ' that no duty to inquire about evidence arises from the terms of s 427 of the Act (at [46]). His Honour noted that in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) said, in the context of explaining how detailed the questioning of an applicant was required to be, that '[t] he Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on '. However, Allsop J concluded that that reference had nothing had to do with the specific circumstances of the case before him. Justice Allsop concluded that the giving of an invitation to comment carries with it an obligation under the Act to deal with a communication in response to that invitation in a reasonably business-like way, including the reading of any response to the invitation. The question in SZJBA was not whether the Tribunal should have undertaken some evidence gathering task (at [59]). The failure ' was to take a simple administrative step of an office or housekeeping nature '. The obligation does not rest on some positive duty of inquiry. It is only in exceptional cases that a failure to make an inquiry may ground a finding of jurisdictional error (at [60]; see also Le at [60] per Kenny J).


case_text: summarise Mr Aporo's submissions on the first ground, he relies upon a number of circumstances to establish that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided ( Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] ). Mr Aporo submits that: (a) the material before the delegate and the Tribunal was unverified and untested and neither the delegate nor the Tribunal inquired as to its provenance. Specifically: the criminal record and sentencing reports are not certified and contain discrepancies; Mr Murdoch's reports do not contain an explanation of his training, study or experience. They do not explain how the conclusion was reached that Mr Aporo was at a "high risk" of recidivism; there was no material before the Tribunal as to the provenance of the statement of facts taken into account by English DCJ. The applicant speculates that ' it is entirely conceivable ' that the statement of facts was prepared by the prosecution and tendered in committal proceedings and was accepted notwithstanding that the facts may have been incorrect. (b) The Tribunal's findings are in a number of respects perverse, in the sense of being mere assertion, lacking rational foundation and selective of material going only one way. Specifically, he submits that: the preference for Mr Murdoch's assessment as to the risk of recidivism over that of Dr Banks was unexplained and contrary to the weight of the material on this issue. Mr Murdoch's assessment was not based on specialised knowledge or training and there is no obvious basis for his conclusion. Conversely, the opinion of Dr Banks is based on specialised knowledge. The Tribunal gave Dr Banks' report little or no weight because it did not contain an estimate of the likelihood of recidivism; the weight given by the Tribunal to those parts of Mr Aporo's evidence concerning his childhood are without any basis. A similar approach was taken with respect to Mr Aporo's relationship with Ms Kara; with respect to the likelihood of recidivism, the Tribunal drew inferences from material before it that were neither natural nor obvious. There was no intellectual engagement with the material which indicated that Mr Aporo has responded to drug and counselling programs and the conduct of the Tribunal indicates that it was not open to persuasion; The Tribunal dealt with the material before it in a selective manner. The provenance of the material relied upon Mr Aporo says that the failure of the Tribunal to inquire into the provenance of the material before it indicates bias or apprehended bias on the part of the Tribunal. The alleged obligation concerning the provenance of the material is also raised as a separate ground in the application. Other matters are also the basis of more than one ground. This has led to a degree of repetition in these reasons for judgment.


case_text: Aporo relies on SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14 at [53] [56]. In that case Allsop J considered a circumstance in which the Tribunal relied upon the fact that an appellant failed to submit a response to the invitation to make submissions when in fact the Tribunal had received a cover sheet stating that submissions were enclosed even though, apparently by mistake, they were not. The appellant submitted that in those circumstances the Tribunal should have made inquiries about the missing enclosure and the comments the appellant intended to make, as it was on notice that the enclosure had been forwarded. Justice Allsop accepted the ' straightforward recognition ' that no duty to inquire about evidence arises from the terms of s 427 of the Act (at [46]). His Honour noted that in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) said, in the context of explaining how detailed the questioning of an applicant was required to be, that '[t] he Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on '. However, Allsop J concluded that that reference had nothing had to do with the specific circumstances of the case before him. Justice Allsop concluded that the giving of an invitation to comment carries with it an obligation under the Act to deal with a communication in response to that invitation in a reasonably business-like way, including the reading of any response to the invitation. The question in SZJBA was not whether the Tribunal should have undertaken some evidence gathering task (at [59]). The failure ' was to take a simple administrative step of an office or housekeeping nature '. The obligation does not rest on some positive duty of inquiry. It is only in exceptional cases that a failure to make an inquiry may ground a finding of jurisdictional error (at [60]; see also Le at [60] per Kenny J).


case_text: Aporo submits that it would have been a "simple step" for the Tribunal to have pursued the avenues of inquiry offered by the availability of Mr Murdoch and Dr Banks to resolve any conflict in the material ( SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 at [29]). It is not a question of whether it would have been a simple step for the Tribunal to pursue the avenues of inquiry. There was no conflict in the material before the Tribunal, as Dr Banks did not give an estimate. Rather, the Tribunal was unable from Dr Banks' report to draw a conclusion as to the likelihood of recidivism or the effect of rehabilitative steps on that likelihood, even if Mr Aporo were to undertake them. Even if there were a conflict, the Tribunal is not obliged whenever there is a conflict in the evidence presented to conduct its own investigation to resolve that apparent conflict if it is able to give reasons for preferring or giving more weight to some evidence over other evidence or preferring one opinion over another. It is not simply a question of whether or not Dr Banks had provided an estimate in the sense of some mathematical analysis. The resolution of a conflict in the evidence is not the taking of the sort of step of embarking upon the Tribunal's own inquiries as to the underlying facts, which then imports further obligations ( SZIAI at [29]). The obligation on an administrator to make its own inquiries is strictly limited ( SZIAI at [25]).


case_title: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14


case_text: Aporo now criticises the Tribunal for accepting his statements in respect of the Villawood assessment and criticises the Tribunal for accepting the evidence from a witness, namely himself, who had a ' demonstrated propensity to fabricate evidence '. Mr Aporo relies upon the Tribunal's acceptance of his own evidence as indicating a capriciousness in the decision making process and a failure to act judicially in the sense of being based on ' instinct, a hunch or a gut-feeling ' ( WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 ; (2004) 80 ALD 568 at [20] and following; Sharp v Wakefield [1891] AC 173 at 179). The Tribunal was entitled to accept so much of Mr Aporo's evidence and submissions as it determined was acceptable. Further, there is a difference between submissions and the result of an assessment and evidence of criminal history. Mr Aporo says that there was insufficient material before either the delegate or the Tribunal to support a conclusion regarding the likelihood of recidivism adverse to Mr Aporo. The Tribunal was entitled to take account of the evidence and submissions before it and come to a conclusion based upon that evidence and those submissions. That is what occurred. The Tribunal was not obliged to conduct an independent investigation, or to conduct its own assessment of the likelihood of Mr Aporo's recidivism. The weight given to Mr Aporo's evidence


case_text: In declining interlocutory relief, I have had regard to the principles recently considered by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46. Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, cited with approval (at par 65) the following statement from Beecham Group Ltd v Bristol Laboratories Pty. Limited [1968] HCA 1 ; (1968) 118 CLR 618 at p 622: 'How strong the probability [of success] needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.' 55 In O'Neill , their Honours disapproved of statements by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 and said at pars 71 72 '71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". That was followed by a proposition which appears to reverse matters of onus: "So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.'


case_text: In declining interlocutory relief, I have had regard to the principles recently considered by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46. Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, cited with approval (at par 65) the following statement from Beecham Group Ltd v Bristol Laboratories Pty. Limited [1968] HCA 1 ; (1968) 118 CLR 618 at p 622: 'How strong the probability [of success] needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.'


case_text: In O'Neill , their Honours disapproved of statements by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 and said at pars 71 72 '71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". That was followed by a proposition which appears to reverse matters of onus: "So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.'


case_text: First, as a general proposition, adjudication by an administrative tribunal is administrative in character and does not create an issue of estoppel : W J & F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23 ; (1957) 96 CLR 294 at 315. And that general approach has been applied in respect of decisions of the Administrative Appeals Tribunal: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87. Hill J there observed at 97: Where, as occurred in the present case, the decision is remitted to the decision-maker for reconsideration, it is evident that the ultimate decision will be one not made by the tribunal, but by the decision-maker himself. But even where the tribunal substitutes its own decision for that of the original decision- maker, the tribunal in so doing is merely acting in an administrative capacity. Its decision is deemed for all purposes to be the decision of the decision-maker: s 43(6) of the AAT Act. To use the language of Rich and Dixon JJ in Jolly v FCT [1935] HCA 21 ; (1935) 53 CLR 206 at 214 referring to the taxation boards of review, but equally applicable to the tribunal, the tribunal is: "only another executive body in an administrative hierarchy". The tribunal's function, like that of the taxation boards of review which it, inter alia, replaced, is, to adapt the language of Kitto J in Mobil Oil Australia Pty Ltd v FCT [1963] HCA 41 ; (1963) 113 CLR 475 at 502, merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration what the tribunal considers that position to be. In relation to the taxation boards of review, Kitto J in W J & F Barnes Pty Ltd v FCT [1957] HCA 23 ; (1957) 96 CLR 294 at 315, said: "The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue- estoppel." The full court of this court in Commonwealth v Sciacca (1988) 78 ALR 279 ; 17 FCR 476 at 480 had no hesitation in saying: "A finding by an administrative tribunal will not give rise to an issue estoppel." Hill J then went on to conclude (at 98) that the decision of the High Court in Administration of the Territory of Papua New Guinea v Daera Guba [1973] PGHCA 1 ; (1973) 130 CLR 353 did not require any contrary conclusion. This decision has since been followed: Lilienthal v Migration Agents Registration Authority [2001] FCA 2 at [20] , 65 ALD 437 at 442 per Katz J.


case_title: Browne v Dunn (1893) 6 R 67

case_text: It is not considered necessary, however, to resolve any such discrepancies as may have emerged from the differing accounts; nor is it necessary to resolve whether the submissions advanced on behalf of Mr Godwin went beyond the Application filed in this Court, as supplemented by his Outline of Submissions . It is also unnecessary to resolve whether or not submissions which were sought to be advanced were not available to the Applicant by reason of questions not being put to the advocate which should have been put in accordance with the principles of Browne v Dunn (1893) 6 R 67 at 70 1 per Lord Herschell LC. For example, the advocate was never asked in cross-examination whether she had deliberately set out to obtain evidence to defeat the eligibility of the Applicant. 47 In the present case there is no basis for concluding -- as submitted on behalf of Mr Godwin -- that the delegate was " off on a frolic to disprove the Applicant's entitlement ". Such reliance as is sought to be placed, on behalf of Mr Godwin, upon the limited instructions given to the advocate in January 2007 does not support any conclusion that the advocate was conducting any review of historical records which was not within the ambit of her instructions. And, even if the solicitor's account of the conversations with the advocate prevail, those conversations do not support any conclusion that there had been an unreasonable exercise of power or an exercise of power in bad faith. 48 On behalf of Mr Godwin it is further contended that the Commission: ... has, by its decision dated 10 September 2007, decreased the rate of the applicant's pension, relying on section 31(6). In doing so, the Respondent has failed to comply with the provisions of section 31(12) and section 178(1) which prohibits the Respondent from such action within six months of a decision by the Tribunal in respect of the rate of pension. The Tribunal decided the rate of pension for the Applicant on 28 August 2007, less than two weeks before the Respondent's decision. 49 Section 31(12) of the 1986 Act provides as follows: This section applies to and in relation to a decision made before or after the commencement of this section but does not apply to or in relation to a decision of the Board referred to in subsection 154(1), or a decision of the Administrative Appeals Tribunal referred to in subsection 178(1), that is binding on the Commission by reason that the period specified in that subsection has not expired. And s 178(1) provides as follows: Period of operation of certain decisions of Administrative Appeals Tribunal (1) Where, on a review of a reviewable decision, the decision of the Administrative Appeals Tribunal expressly, or in effect: (a) assesses a rate of pension or increased rate of pension; (b) refuses to grant a pension, on the ground that the extent of the incapacity of the veteran was insufficient to justify the grant of such a pension; (c) refuses to increase the rate of a pension; or (d) reduces the rate of a pension; that decision of the Administrative Appeals Tribunal shall, subject to subsection (2), be binding on the parties to the proceedings before that Tribunal for a period of 6 months commencing on the day on which that Tribunal makes the decision. 50 The Tribunal on 28 August 2007 concluded that Mr Godwin was entitled to receive a pension at the special rate with effect from 5 May 2005. Pursuant to s 178(1), that decision was " binding ... for a period of 6 months " as from 28 August 2007. 51 The delegate when conducting his s 31 review concluded that: ... Pension is ... assessed at 10% of the general rate with effect from 2 August 2000. The Tribunal's decision said nothing as to the period prior to 5 May 2005 and s 178(1) has no application to that prior period. 52 Nor did the delegate's decision purport to diminish the effect otherwise given to the decision of the Tribunal pursuant to s 178(1). In any event, the six month period referred to in s 178(1) has expired. The decision of the delegate, it should further be noted, has previously been stayed by an order of this Court. 53 Accordingly, no breach of s 178 has been established. 54 A final submission advanced on behalf of the Commission need not be finally resolved.


case_text: The construction of s 31(4) urged by Mr Godwin was also said to be implicitly supported by the administrative decision-making hierarchy proceeding from the Commission, thereafter to the Board, and finally to the Tribunal. It was understood that the submission advanced was that s 31(4) was to be confined to the initial repository of decision-making authority and not to be extended to decisions which had been exposed to further administrative review. Albeit in the context of s 31(6), the same argument has been rejected: Davis v Repatriation Commission (1997) 74 FCR 577. Sundberg J there observed: The applicant's alternative argument took as its starting point the hierarchy of decision-making established by the Act. The hierarchy consists of the Commission as primary decision-maker, the Board as the second tier decision-maker, and the AAT as the third tier decision-maker and ultimate forum of merits review. It was said that the review mechanisms provided by s135 and s175 were intended to result in the final disposition of claims. It was submitted that while the word "matter" standing alone would receive a wide construction, in the context of the review provisions as a whole it must be limited to a degree which is necessary to achieve finality in the disposition of claims. If s31(6) is not limited in this manner, the Commission could review decisions of the Board or the Tribunal again and again on any pretext in defiance of the review hierarchy. The limitation contended for was not more precisely formulated than this, but was said to lead to the conclusion that a medical report which merely repeats and endorses the conclusions in other reports based on documented observations, and which contains no new observation, fact, cause, circumstance, information, opinion or contention, is not capable of being a matter which was not before the Board when the decision to grant the pension was made. It was accepted that a medical report which was brought into existence to take into account some change in the facts and circumstances, or facts or circumstances not previously disclosed, might be in a different position. I see no reason to limit the ordinary meaning of the words "any matter that affects the payment of a pension ..., being a matter that was not before the ... Board ... when the decision to grant the pension ... was made" in the manner contended for. The "hierarchy" argument, which purports to be based on the structure of the review provisions of the Act, ignores the fact that s31 itself contains no less than seven exceptions to the simple three tier structure on which the submission is based. Far from supporting the contention that s31(6) would, unless narrowed, permit the Commission to review decisions of the Board or Tribunal in defiance of the review hierarchy, a reading of the relevant parts of the Act as a whole shows that the three tier review structure contended for is simplistic. Not only does s31 provide a number of additional grounds of review, but decisions made pursuant to the section are themselves subject to review under s135(3). ... The fact that s31(6) may be open to abuse (repeated reviews on any pretext), does not in my view require it to be read down. A capricious or unreasonable exercise of the power will be susceptible to review under s5 of the Administrative Decisions (Judicial Review) Act . For present purposes there is not considered to be any relevant distinction as between s 31(4) and s 31(6). 19 The alternative submission advanced on behalf of s 31(4) should also be rejected. This alternative argument assumed that s 31(4) did confer a power upon the Commission to undertake a review -- even after a Tribunal decision -- but contended that there was no power to do so in the present proceedings because there was no evidence which was " false in a material particular ". " False ", it was contended, should be interpreted as meaning " deliberately untruthful ". 20 There are at least two difficulties in acceding to this alternative submission. 27 The Applicant concedes that the power conferred by s 31(6) may be exercised after there has been a review by the Tribunal. Given both the terms of s 31(6) and the decision of Sundberg J in Davis , that concession was quite properly made. 28 The Applicant, however, contends that there is in the present proceedings no " matter " which was not before the Tribunal. Reliance is placed upon the following observations of Sundberg J in Davis : ... The power in s31(6)(a) is available to the Commission only if it is satisfied of the existence of a matter that affects the payment of a pension and which was not before the decision-maker. If the " new material " is no more than a repetition of material that was before the decision-maker, it would not be reasonably open to the Commission to be relevantly satisfied that the material " affects the payment of a pension ". 29 The Applicant has variously identified the " matter ". It is understood that the " matter ", as defined by the Applicant, was whether or not the sampan incident occurred. The contention sought to be advanced is that the material relied upon by the delegate was, presumably, " a repetition of material that was before the decision-maker ". 30 It is considered that this submission should also be rejected for at least two reasons. 31 First, the term " matter " can include new evidence relevant to the manner in which the prior decision was made. Section 31(6)(a) has not been construed, and should not be construed, as precluding an exercise of the power of review where new evidence or other material becomes available which has not previously been considered. And it may not matter that that new material was available even at the time when the Tribunal made its decision. Thus, Sundberg J went on to conclude in Davis as follows: It was also submitted for Mrs Davis that because Professor Cade's report had been received in time for it to be used by the Commission in support of an application for review of the Board's decision by the AAT, it could not found an exercise of the Commission's power to review the Board's decision under s31(6)(a). A variation of this argument was that the Commission, having had a reasonable opportunity to put Professor Cade's report before the AAT, had not done so, and so was not able to use the report to found an exercise of power under s31(6). These assertions were not developed in argument, and in my view they have no substance. If material becomes available after the relevant decision is made, and it affects the payment of a pension, the power in s31(6)(a) is available to the Commission. It is simply irrelevant that it becomes available at a time when the Commission might seek a review by the AAT. The Commission may engage in conduct which disables it from taking a particular course, but in the absence of any such conduct, it can pursue whichever avenue it chooses. The second argument advanced has overtones of estoppel without any factual basis to support the estoppel. Further, in Repatriation Commission v Richardson [2001] FCA 1626 at [15] [18], [2001] FCA 1626 ; 115 FCR 220 Dowsett J concluded that it was open to the Commission pursuant to s 31(6) to have regard to material of which it was ignorant at the time the original decision was made to grant a pension. 32 Section 31(6) should not be construed as excluding from the term " matter " new evidence, albeit evidence in relation to an area of factual dispute previously resolved. In Davis, it may be noted, the new evidence which satisfied the requirements of s 31(6)(a) was a medical report which " contained an expression of opinion from a highly qualified medical specialist, based on contemporary clinical and laboratory evidence, that persuasively identified the cause of death to the exclusion of other possible causes ". 33 Second, there is the same difficulty as confronted the Applicant with respect to s 31(4), namely that the power conferred by s 31(6) is a power vested in the Commission if it is "satisfied " of the matters there set forth. The contents of the 2007 report provided a basis for reaching that state of " satisfaction ". 34 Section 31(6) was thus also a basis for review open to the delegate.


case_text: The argument, however, ignores the effect given to a decision of the Tribunal. Section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) provides as follows: A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44) , be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. In the present context, a decision of the Tribunal is deemed to be a decision of the Commission " for all purposes ". Where there has been a decision of the Commission which has been reviewed by the Tribunal, as in the present proceedings, the subsequent decision of the Tribunal is nevertheless " deemed " to be a decision of the Commission. Section 31(4) , it is considered, thus includes both a decision of the Commission and a decision of the Commission as altered, varied or affirmed. The effect of s 43(6) of the 1975 Act cannot be confined to simply identifying the date from which a decision of the Tribunal is to take effect. To so construe s 43(6) is to give effect only to the latter part of the provision and is to ignore the " deeming " effect given to a Tribunal decision. To conclude that the power of review vested in " the Commission " by s 31(4) could not be exercised after review by the Tribunal would be to construe s 31(4) as excluding a power of review where there has been a decision which is deemed to be a decision of the Commission itself and deemed to be a decision of the Commission " for all purposes ". A construction of a statutory provision which permits further administrative reconsideration subsequent to a Tribunal decision is not surprising: see, eg, Hanna v Australian Postal Corporation [1990] FCA 153 ; (1990) 12 AAR 511. 17 Irrespective of s 43(6) of the 1975 Act, however, it is further considered that the contrast in language relied upon by Mr Godwin as between s 31(4) and s 31(6) is misplaced. All that the language employed in s 31(6) prescribes are those circumstances in which the Commission may exercise the power there conferred. It may exercise those powers where it is " satisfied " that there is a " matter " that was not before any of the decision-making stages, be the decision one made by the Commission, the Board or the Tribunal. Such a provision provides little if any basis for confining the ambit of the power conferred by s 31(4). The difference in language as between s 34(4) and s 34(6) is not considered to be a sufficient basis to construe s 31(4) as imposing any constraint other than the one prescribed by the legislature, namely that the Commission be satisfied that evidence was " false in a material particular ".


case_title: Lilienthal v Migration Agents Registration Authority [2001] FCA 2


case_title: Midland Metal Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87


case_text: First, the task of determining whether there was evidence which was " false in a material particular " is not a task entrusted to this Court; it is a task entrusted by the Commonwealth legislature to the Commission. Section 31(4) thus confers the power of review where " the Commission is satisfied that evidence before [it] when it made a decision was false in a material particular ". Where a discretionary power is vested in the Commission in such terms, it matters not that others may have reached a different decision and may have done so reasonably, provided that there was some probative material available to support the decision in fact taken by the Commission: cf Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 at [45] per Gleeson CJ and McHugh J, [147] per Gummow J, [1999] HCA 21 ; 197 CLR 611.


case_text: Second, there was indeed material available to the Commission upon which it could reach the state of satisfaction that evidence previously before it was " false in a material particular ". The meaning of the term " false " depends upon the statutory context in which it is used. In some statutory contexts the term may mean " purposely or deliberately or intentionally untrue ": see, eg, Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19. The term " false " in the present statutory context, however, is considered to mean " objectively incorrect ": cf Musgrave v Martin [2003] FCA 920 at [105] , [2003] FCA 920 ; 130 FCR 546 at 565 per Weinberg J. Where the 1986 Act seeks to impose a requirement that a " false " statement be made " intentionally ", it so provides: see, eg, s 208.


case_title: Musgrave v Martin [2003] FCA 920


case_text: First, the term " matter " can include new evidence relevant to the manner in which the prior decision was made. Section 31(6)(a) has not been construed, and should not be construed, as precluding an exercise of the power of review where new evidence or other material becomes available which has not previously been considered. And it may not matter that that new material was available even at the time when the Tribunal made its decision. Thus, Sundberg J went on to conclude in Davis as follows: It was also submitted for Mrs Davis that because Professor Cade's report had been received in time for it to be used by the Commission in support of an application for review of the Board's decision by the AAT, it could not found an exercise of the Commission's power to review the Board's decision under s31(6)(a). A variation of this argument was that the Commission, having had a reasonable opportunity to put Professor Cade's report before the AAT, had not done so, and so was not able to use the report to found an exercise of power under s31(6). These assertions were not developed in argument, and in my view they have no substance. If material becomes available after the relevant decision is made, and it affects the payment of a pension, the power in s31(6)(a) is available to the Commission. It is simply irrelevant that it becomes available at a time when the Commission might seek a review by the AAT. The Commission may engage in conduct which disables it from taking a particular course, but in the absence of any such conduct, it can pursue whichever avenue it chooses. The second argument advanced has overtones of estoppel without any factual basis to support the estoppel. Further, in Repatriation Commission v Richardson [2001] FCA 1626 at [15] [18], [2001] FCA 1626 ; 115 FCR 220 Dowsett J concluded that it was open to the Commission pursuant to s 31(6) to have regard to material of which it was ignorant at the time the original decision was made to grant a pension.


case_title: W J & F Barnes Pty Ltd v Federal Commissioner of Taxation [1957] HCA 23 ; (1957) 96 CLR 294


case_text: Perera does not, at [37] or at all, contrary to the reasons of the Federal Magistrate at [57] stand for the proposition that errors in interpreting can be rectified. Nonetheless, I would accept that in certain circumstances errors of that kind may be rectified. This could be done by written submissions to the Tribunal after the hearing: Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [25] per McHugh, Gummow, Callinan and Heydon JJ and per Kirby J at [75]. It could also be done by the provision of a corrected transcript accepted by the Tribunal as accurate. Indeed, that is what occurred in this case in respect to the question of when the appellant commenced the practice of Falun Gong in China. Such errors however cannot always be rectified in this way and a further oral hearing at which an applicant gives evidence may be necessary. It will at least depend on the nature and extent of the errors. 37 Furthermore, a witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation: Perera at [49]. The negative impression in the mind of the Tribunal Member conveyed by the appellant's answers, incorrectly interpreted, is, in my opinion, difficult if not impossible to eradicate, after the hearing. Such a negative impression, in one area of evidence, such as the question of when the appellant began to practice Falun Gong in China, will often affect a decision-maker's conclusions in other areas. It is impossible to discern the affect such impressions made at the time may have had on the Tribunal's conclusions as a whole: cf Applicant NAAF of 2002 at [40]. The subsequent characterisation of this evidence as a "misunderstanding" by the Tribunal does not inevitably overcome the unfavourable impression obtained at the hearing by the Tribunal concerning the appellant's credit. 43 There was no finding nor evidence to warrant a finding that the appellant consented to not having a further hearing such as to trigger the exempting provision in s 425(2)(b) of the Act . No such submission was put in the appeal. I do not regard the above submission concerning the appellant's "implicit ... acceptance" that it was appropriate for the Tribunal to proceed to make a decision as being to that effect. Even if it was I would not accept the submission. Consent for the purposes of s 425(2)(b) of the Act would be required to be given, in my opinion, in unambiguous terms. It would be an unusual case for such consent to be implied. Accordingly it is not to the point that the appellant did not ask for a third Tribunal hearing. The statutory obligation under s 425 to "invite" the appellant to appear before it to give evidence and present arguments lay with the Tribunal. It is a continuing obligation: Applicant NAAF of 2002 at [26]-[27]. It extended no such invitation to the appellant to attend a further hearing so that he could give evidence, with adequate interpretation, on the topics where it had been demonstrated that his "evidence" at the hearing on 11 October 2006 was riddled with confusion and error because of poor interpretation. The failure by the appellant to ask for a further hearing did not affect that obligation. I am satisfied that the interpretation of matters of significance to the appellant's case and the Tribunal's reasons fell well short of the requisite standard. 44 It may be that if there had been no interpretation error the result would not have changed. However I am unable to conclude on the balance of probabilities that this would have been the case. The potential consequences for the appellant should he be forced to return to China are dire. Justice requires that he be afforded another opportunity to give evidence and present arguments. 45 The failure to provide adequate interpretation services meant, in this case, that the Tribunal did not comply with s 425 of the Act . The appellant was in significant respects prevented from giving evidence and for that reason did not receive a fair hearing. Jurisdictional error on the part of the Tribunal has been established. The decision of the Tribunal was accordingly invalid. This ground of appeal is made out. 46 Because of the view to which I have come in respect of the first ground of appeal it is not strictly necessary to consider the new second ground in respect of which leave is sought. However I propose nonetheless to consider the merits, going to the question of leave, because the particulars of this ground raise serious allegations against the Tribunal Member. They should not be left unresolved.


case_text: Apprehension of bias is founded on the notion that justice should not only be done, but it should also be seen to be done: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 345. The test to be satisfied is "whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision": NADH v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [14] .


case_text: While it is accepted that a perfect interpretation is never possible, it is essential that the interpreter serve as an accurate means of communication between the parties: Gaio v The Queen [1964] PGHCA 2 ; (1960) 104 CLR 419 at 433. It is sufficient that the translation is sufficiently accurate so as to convey the idea or concept being communicated: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 511 at [66].


case_text: The right to give evidence at a hearing exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right; Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 187 ALR 348 at [44] . None of those situations under s 425(2) which exempt the Tribunal from compliance with s 425(1) is present in this case. 20 The first question that must be determined is whether there was a departure from the relevant standard of interpretation. The interpretation before the Tribunal must be so incompetent that it prevents the appellant from giving evidence: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at [38] . Further the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant's case in the Tribunal as well as to the Tribunal's decision: Perera at [45]. Perera was cited with apparent approval by the Full Court in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 at [44] . That passage was itself cited by the Full Court in SCAR at [34].


case_text: The right pursuant to s 425 is not a merely formal right, but is a right that imposes an objective requirement on the Tribunal to provide a 'real and meaningful' invitation: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 ; [2003] 128 FCR 553 at [37] . Compliance with s 425 of the Act by the Tribunal is a precondition to the valid exercise of its jurisdiction. Failure by the Tribunal to comply with the requirements of s 425 of the Act involves a "jurisdictional error": SCAR at [38]. The statutory obligation upon the Tribunal to provide a "real and meaningful" invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. The Full Court in SCAR at [37] said that: ... it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a "real and meaningful" invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where ...the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate : Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. (Emphasis added) 20 The first question that must be determined is whether there was a departure from the relevant standard of interpretation. The interpretation before the Tribunal must be so incompetent that it prevents the appellant from giving evidence: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 at [38] . Further the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant's case in the Tribunal as well as to the Tribunal's decision: Perera at [45]. Perera was cited with apparent approval by the Full Court in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 at [44] . That passage was itself cited by the Full Court in SCAR at [34].