case_text: There was, however, no opposition to advancing the submission as to a failure to make inquiries in terms of the decision being unreasonable. So structured, the dispute centred upon whether or not it was unreasonable not to have made further inquiries. No submission was advanced on behalf of the Appellant, nor could it have been advanced, that the power of the Tribunal to make further inquiries imposed upon it " any duty or obligation to do so ": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] , [2007] FCA 1592 ; 164 FCR 14 at 25 per Allsop J; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] . Nor was any submission advanced on behalf of the Respondent Minister that there was not a line of inquiry which was readily available to the Tribunal and centrally relevant to the task being undertaken: eg, Li v Minister for Immigration and Citizenship [2007] FCA 1098 at [28] , [2007] FCA 1098 ; 96 ALD 361 at 367 per Kenny J. The simple submission advanced on behalf of the Respondent Minister was that there was material upon which the Tribunal could justifiably have based its decision and there was, in those circumstances, no duty to inquire further. The response of the Association was disclosed to the now Appellant and he provided his response. 19 The position advanced by the Respondent Minister, that review is available where there has been a failure to make inquiries, is consistent with the proposition that jurisdictional error may be exposed by a failure to inquire and that such a failure may render a decision manifestly unreasonable: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] , [2007] FCA 1318 ; 164 FCR 151 at 172 3. Her Honour Justice Kenny there observed: [60] This takes me to the sixth of the Minister's grounds on the hearing of the appeal. On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal... On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury Corporation). [61] In Wednesbury Corporation [1948] 1 KB at 230, Lord Greene MR summarised what he saw as a fundamental common law principle when he said "[i]t is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere". He added that "to prove a case of that kind would require something overwhelming". A finding of jurisdictional error on the ground of unreasonableness is rare compared with other grounds: see Applicant M17 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1364 at [29] per North J. It is sometimes said that there must be something exceptional about the case to attract the ground. [62] Although the position in Australia may differ from that in England, the decision in Wednesbury Corporation [1948] 1 KB 223 would support the proposition that an exercise of power that is unreasonable in this sense may ground a finding of jurisdictional error. ... [63] The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded to make the decision without making the enquiry... In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries... Appl'd: Bunnag v Minister for Immigration and Citizenship [2008] FCA 357 at [36] per McKerracher J. In circumstances where a migration agent forwards by way of facsimile a cover sheet together with a five page submission and where only the cover sheet is received, it has been held to be unreasonable for the Tribunal not to inquire about the missing pages: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 , 164 FCR 14 per Allsop J.


case_outcome: followed

case_title: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 , 102 ALD 226

case_text: Section 91R(3) provides as follows: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. This provision, it has been said, " suffers from a lack of clarity ": SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [10] , [2008] FCAFC 105 ; 102 ALD 226 at 231 per Spender, Edmonds and Tracey JJ. 38 The contention sought to be raised concerns the fact that the Tribunal correctly concluded that the Appellant's conduct in attending the Ahmadi mosque in Australia was to be disregarded. The Tribunal thus relevantly concluded: Since I do not accept that the applicant is a genuine Ahmadi I am not satisfied that he has engaged in his conduct in attending the Ahmadi mosque here otherwise than for the purpose of strengthening his claim to be a refugee. I consider, therefore, that his conduct in attending the Ahmadi mosque here is to be disregarded in accordance with subsection 91R(3) of the Act. 39 Notwithstanding the assurance provided by the Tribunal that the attendance at the mosque was to be " disregarded ", Counsel for the Appellant submitted that the Tribunal nevertheless went on to have regard to that attendance when it thereafter concluded: I note for the sake of completeness that, since I do not accept that the applicant has told the truth about his claimed conversion to the Ahmadi faith in Bangladesh, I do not accept that there is a real chance that he will be perceived as a convert to the Ahmadi faith if he returns to Bangladesh now or in the reasonably foreseeable future. Such a " perception ", it was contended, could only have been founded upon the Appellant's attendance at the mosque.


case_text: A party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Appl'd: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18] , [2002] FCAFC 105 ; 190 ALR 543 at 548 9 per Hill, O'Loughlin and Tamberlin JJ. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The importance of litigants, especially in the present statutory context, raising all arguments in need of resolution in the Federal Magistrates Court cannot be underestimated. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J referred to the appellate jurisdiction of this Court being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and continued: [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.


case_text: The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.


case_text: There was, however, no opposition to advancing the submission as to a failure to make inquiries in terms of the decision being unreasonable. So structured, the dispute centred upon whether or not it was unreasonable not to have made further inquiries. No submission was advanced on behalf of the Appellant, nor could it have been advanced, that the power of the Tribunal to make further inquiries imposed upon it " any duty or obligation to do so ": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] , [2007] FCA 1592 ; 164 FCR 14 at 25 per Allsop J; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] . Nor was any submission advanced on behalf of the Respondent Minister that there was not a line of inquiry which was readily available to the Tribunal and centrally relevant to the task being undertaken: eg, Li v Minister for Immigration and Citizenship [2007] FCA 1098 at [28] , [2007] FCA 1098 ; 96 ALD 361 at 367 per Kenny J. The simple submission advanced on behalf of the Respondent Minister was that there was material upon which the Tribunal could justifiably have based its decision and there was, in those circumstances, no duty to inquire further. The response of the Association was disclosed to the now Appellant and he provided his response.


case_title: Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108


case_outcome: cited

case_text: I congratulate the parties on the agreement they have reached and acknowledge the efforts of the National Native Title Tribunal in assisting the parties. As this Court stated in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [5] : '[s]ettlement of native title claims by agreement is to be welcomed and encouraged. It means that the parties can decide for themselves how best to institute an arrangement that satisfies their respective rights and interests in a way that, as appropriate, recognises the rights and interests of the other parties'. 6 The Ngarla applicants have nominated the Wanparta Aboriginal Corporation ('the Corporation') as the prescribed body corporate to hold the native title of the claimant group on trust following the determination of these proceedings pursuant to s 56(2) of the Native Title Act 1993 (Cth) ('the Act'). The nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. 7 The Court may make orders giving effect to an agreement reached between the parties where the agreement relates to the proceeding or part of the proceedings without holding a hearing ' if it appears to [the Court] to be appropriate to do so ' (ss 87(2) and (3) of the Act). The Court may also, if agreement is reached on a proposed determination of native title in relation to an area included in the area covered by an application, make an order in, or consistent with, the proposed determination without holding a hearing if the Court considers it would be appropriate to do so (s 87A(4)(b)). 11 As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ). 22 The exercise of the Court's discretion pursuant to s 87A imports the same principles as those applying to the making of a consent determination of native title under s 87. The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act ( Hughes at [8] citing Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7]). 23 Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Hughes at [9]).


case_text: As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ). 24 If, of course, an agreement were reached where there was nothing to support the claimed connection of the applicants to their country, or the determination appeared to be unfair or unjust, the Court might conclude that a determination would be inappropriate and decline to make the orders sought ( James at [4]). That is not the case here. 25 The continuous connection of the Ngarla people with Determination Area A is acknowledged by all of the parties. There is also evidence to support that connection. The Ngarla Native Title Claim Connection Report ('the Report'), prepared by Dr Nicholas Smith, describes the traditional and enduring connection of the Ngarla people to their country within the claim area. They share a distinctive Ngarla identity, a distinct language, and a distinct law and kinship system. They have a contemporary attachment to the land and waters and continue to use the land and waters for subsistence practices. Those practices have been somewhat modified over time in a way that can be traced to practices utilised by their ancestors. However, as the authors of the Report note at 142, '[i] t stands to reason that claimants no longer live in exactly the same manner as their ancestors did prior to European settlement; and it would be unrealistic to expect them to do so '. The Report concludes that the testimony and evidence indicate that, despite the impact of colonisation, Ngarla people maintain a physical and spiritual connection with their homelands and have continued to do so (at 247). 26 The Report describes how the Ngarla people, a compact claimant group, identify as belonging to the wider regional cluster of Pilbara Aboriginal peoples but are distinct (at 9). There are criteria by which individuals identify and are identified as Ngarla (at 10-11). The most recognisable feature of Ngarla membership is knowledge of Ngarla country and its resources (at 35). Many of the claimants have an extraordinary detailed knowledge of Ngarla country. The adults devote time in passing on this knowledge and in this way Ngarla traditions are reinforced and transmitted. The claimants' self-identification is grounded and perpetuated in a range of customary beliefs and practices, namely law, language and kinship (at 37).


case_text: The exercise of the Court's discretion pursuant to s 87A imports the same principles as those applying to the making of a consent determination of native title under s 87. The discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act ( Hughes at [8] citing Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7]).


case_text: As to the fourth precondition, three matters should be noted. The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date ( Munn (For and on behalf of the Gunggari People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in northern Western Australia under s 87 ( Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes ).


case_title: Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6


case_title: Nangkiriny v Western Australia [2004] FCA 1156


case_text: Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Hughes at [9]).


case_outcome: applied

case_text: 420 of the Act is a facultative non-restrictive provision. Its purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to tribunals ( Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J). Section 420 informs the grounds of review specified in s 476 of the Act but has only an indirect effect on review proceedings ( Eshetu at [76] per Gaudron and Kirby JJ). That is, the section does not impose procedures the breach of which gives rise to a ground of review ( Eshetu at [77]) per Gaudron and Kirby JJ). In any event, even if the appellant were to establish that the Tribunal made a "significant mistake", that does not necessarily establish jurisdictional error. The fact that, theoretically, another Tribunal may have reached a different decision on the claims as presented by the appellant does not mean that the Tribunal failed to comply with s 420. The ground of appeal based on a contravention of s 420 is not made out. Ground 2 access to legal advice


case_text: is apparent that the appellant disagrees with the factual findings of the Tribunal. That does not provide a basis for the serious allegation of actual bias, nor does it indicate that the Tribunal had a mind ' incapable of alteration ' or that ' a fair minded lay observer might reasonably apprehend that the judge [or Tribunal] might not bring an impartial mind to the resolution of the question to be decided ' ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [72] ; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102 at [25] citing Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 179 ALR 425).


case_title: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 179 ALR 425


case_outcome: distinguished

case_text: appellant submits that the Tribunal member had a closed mind or that there was a reasonable apprehension that she did not bring an unprejudiced mind to the review. The particulars and submissions given in support of this ground contained in the appellant's first set of submissions all raise factual matters concerning the appellant's claims. In his further written submissions, the appellant submits that the Tribunal failed to provide him with a genuine opportunity to speak generally about his faith at the Tribunal hearing and that it had already formed a firm view before he was questioned about his faith because it was affected by incorrect independent country information. He refers to SZMSS v Minister for Immigration and Citizenship [2009] FMCA 93 in support of this submission. Contrary to the appellant's submission, the Tribunal's reasons at [29] to [33] indicate that the appellant was given the opportunity to speak generally about his faith at the Tribunal hearing (cf SZMSS at [12]). For example, the appellant recounted his conversion to and practice of Christianity and explained his understanding of the Bible. The Tribunal asked the appellant why he converted to Christianity and what he told people when he spread the gospel. These questions were largely responsive to the matters raised by the appellant. Other questions asked by the Tribunal concerned the appellant's own practice of Christianity in China and whether he had read or studied anything other than the Bible. Otherwise, the Tribunal asked the appellant a question about each of the second coming and the appellant's view of creation. The appellant answered each question. There is no indication in the Tribunal's reasons that it asked these questions in a manner that suggested pre-judgment or a closed mind (cf SZMSS at [15]). Questions exploring the appellant's knowledge of his claimed faith, on which he relied as a basis for a well-founded fear of persecution, do not of themselves indicate bias or a closed mind or a failure to consider the appellant's claims. The Tribunal then turned to the appellant's knowledge of the Church he attended in Sydney. It put a number of questions concerning the beliefs and practices of the Church to the appellant and to Mr Ng, known as Brother Wu, who had accompanied the appellant to the hearing. The Tribunal said that it had done some reading about the Church and it appears that such reading may have informed the Tribunal's questions to the appellant and Mr Ng. However, this does not indicate bias or a closed mind. The ground of appeal based on an allegation of bias or apprehended bias by the Tribunal is not made out. Did the Tribunal fail properly to consider the appellant's claim?


case_outcome: affirmed

case_text: appellant is a citizen of China, born in 1978, who arrived in Australia on 6 August 2008. He claimed to fear persecution in China based on his Christian activities and beliefs and his involvement in anti-Three Gorges Dam activities. The appellant applied for a protection visa, which a delegate of the Minister refused to grant. The appellant applied to the Tribunal for review of the delegate's decision. He was invited to and did attend a hearing on 6 February 2009. The appellant and a witness attended a further hearing on 12 March 2009. The Tribunal made a decision affirming the decision of the delegate. Federal Magistrate Driver dismissed the appellant's application for review of the Tribunal decision ( SZNLJ v Minister for Immigration and Citizenship [2009] FMCA 606). This is an appeal from his Honour's decision. Before the Tribunal, the appellant claimed that he had suffered persecution in China by reason of his involvement in Christian activities and anti-Three Gorges Dam activities. He claimed to have become a Christian in May 2007 and to have distributed religious materials and the Bible. He claimed to have been involved with protests by peasants who had migrated due to the Three Gorges Dam project. He says that he was arrested, detained, tortured and subjected to physical and mental persecution as part of a process called "education through labour" between 1 November 2007 and 31 December 2007. After this incident, he went into hiding, illegally obtained an Australian visa and fled China. He claimed that he would be arrested if he returned to China because he had taken part in the underground movement of Christians and distributed religious materials and had helped the Three Gorges Dam peasants in their protests. The appellant also claimed that after he arrived in Australia, he attended the Christian Assembly of Sydney church in Lidcombe and a Christian church in Auburn. In view of the matters raised in the appeal, it is relevant to give some further detail of the basis of the appellant's claims, as recorded by the Tribunal in its decision which, in turn, included the appellant's statement made in support of his application for a protection visa.


case_title: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102


case_text: The appellant concedes that an objection to criminal activity does not of itself amount to political opinion. Opposition to criminality can amount to political opinion ( Saliba at 46 to 49), but where such a finding has been made something more than mere objection has been required, generally opposition to corrupt police or government officials ( Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998); V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366).


case_text: It was said by Guy Goodwin-Gill in a passage approved both in this Court and the Supreme Court of Canada, that political opinion includes ' any opinion on any matter in which the machinery of State, government, and policy may be engaged ' ( The Refugee in International Law (2 nd ed, 1996) at 49 cited in Saliba at 46 and The Refugee in International Law (1 st ed, 1983) at 31 cited in Canada (Attorney-General) v Ward [1993] 2 SCR 689 at 746). It applies to opinion where a government or ruling party is the persecutor, but not necessarily so. It may also be a group unrelated to the government or opposed to it as was the case in Ward .


case_title: Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998)


case_text: The Tribunal was not obliged to make the case for the appellant ( Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 50). The appellant's main claim before the Tribunal was to a well-founded fear of persecution because he was a member of the Bihari community in Bangladesh. Although there was no direct claim of persecution for political opinion, that is not the end of the matter. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ). 13 In short, the appellant did not raise matters to the Tribunal which articulated or raised a claim to persecution based on political opinion. No such claim was expressly made nor did it arise clearly on the material before the Tribunal ( NABE at [60]). There was no error on the part of the Tribunal in failing to consider such a claim. The Tribunal dealt with the matters raised by the appellant in the context of the claim made by him to the Tribunal. Not only was the Tribunal unaware that such a claim arose from the factual matters raised by the appellant, but so also was counsel who appeared before the Federal Magistrate and her Honour. 14 The appellant told the Tribunal that if he returns to Bangladesh the hooligans will try to kill him. He also said that Biharis have no human rights in Bangladesh and no protection. However, he made no claim that he had sought protection from any person. The Tribunal expressed some doubts about whether the appellant had confrontations with the hooligans, but accepted that he had objected to their illegal activities within the camp. The Tribunal expressed the view that if they had wished to harm the appellant they would have already done so. The appellant claimed no harm to himself. 15 The appellant does not challenge the Tribunal's factual conclusions but contends that the Tribunal was obliged to and did not consider whether the appellant had a well-founded fear of persecution on return to Bangladesh. Mr Karp, who appears for the appellant, pointed to matters such as the sincerity of the opinion held by the appellant and whether he would be expected to re-engage in his activities on his return to Bangladesh. However, the Tribunal concluded that there was nothing in the evidence to indicate that the appellant has suffered treatment amounting to persecution in the past and nothing in the evidence to indicate that there is a real chance that the appellant would face treatment amounting to persecution if he returns to Bangladesh.


case_text: The Tribunal was not obliged to make the case for the appellant ( Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 50). The appellant's main claim before the Tribunal was to a well-founded fear of persecution because he was a member of the Bihari community in Bangladesh. Although there was no direct claim of persecution for political opinion, that is not the end of the matter. A claim ' not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal ' ( NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ). 9 The appellant concedes that an objection to criminal activity does not of itself amount to political opinion. Opposition to criminality can amount to political opinion ( Saliba at 46 to 49), but where such a finding has been made something more than mere objection has been required, generally opposition to corrupt police or government officials ( Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998); V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366). 10 It was said by Guy Goodwin-Gill in a passage approved both in this Court and the Supreme Court of Canada, that political opinion includes ' any opinion on any matter in which the machinery of State, government, and policy may be engaged ' ( The Refugee in International Law (2 nd ed, 1996) at 49 cited in Saliba at 46 and The Refugee in International Law (1 st ed, 1983) at 31 cited in Canada (Attorney-General) v Ward [1993] 2 SCR 689 at 746). It applies to opinion where a government or ruling party is the persecutor, but not necessarily so. It may also be a group unrelated to the government or opposed to it as was the case in Ward .


case_title: V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 ; (1999) 92 FCR 355


case_text: No explanation for the failure to raise the new ground below was given by the appellant other than the briefing of new counsel. I accept that there is no detriment to the first respondent other than costs and that the potential consequences to the appellant are serious. I also take into account the integrity of the appellate process as discussed in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [23] and [24]. 18 There is, in my view, little or no prospect of the proposed ground of appeal succeeding for the reasons I have given. Accordingly, the application for leave to file the amended notice of appeal is refused. There being no other ground of appeal pressed it also follows that the appeal is dismissed. The appellant is to pay the respondent's costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 8 August 2006 Counsel for the Appellant: L Karp Counsel for the First Respondent: A J McInerney Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 25 July 2006 Date of Judgment: 25 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1019.html


case_outcome: considered

case_text: Pendant Software seeks in substance an anti-suit injunction against Mr Hoff. The principles of anti-suit injunctions are well established. Mr Ehrlich who appeared on the interlocutory application for Pendant Software referred to two well known authorities in this area. In CSR Limited v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, said at 391: "The counterpart of a court's power to prevent its processes being abused [by granting a stay] is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets". Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v The Sentry Corporation , a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court. The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes." (footnotes omitted)


case_text: In National Mutual Holdings Pty Limited v Sentry Corporation (1989) 22 FCR 209 Gummow J said at 232: "In Australia, there is the further consideration that where a court has begun to exercise the judicial power of the Commonwealth in relation to a particular matter, it has the exclusive right to exercise or control the exercise of the functions which form part of that power or are incidental to it: cf Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460 at 471 3, 474."


case_text: Mr Dixon, who appeared on behalf of Mr Hoff, submitted that a more appropriate approach was to consider the principles involved with potential commissions of contempt of Court in relation to an administrative proceeding which might impinge upon a Court proceeding. He referred to Sage v Australian Securities and Investments Commission [2005] FCA 1043 , and to Hammond v Commonwealth of Australia [1982] HCA 42 ; (1982) 152 CLR 188, where Gibbs CJ, with whom Mason and Murphy JJ agreed, said at 196: "The ground of the application for the injunction is that the further examination of the plaintiff, and the making of the report, would constitute a contempt of the County Court before which the criminal proceedings against the plaintiff are pending. To succeed in obtaining an injunction on that ground, the plaintiff must establish that there is a real risk, as opposed to a remote possibility, that justice will be interfered with if the Commission proceeds in accordance with its present intention. The tendency of the proposed actions to interfere with the course of justice must be a practical reality - a theoretical tendency is not enough. So much is recognized by the Builders Labourers' Case . The first question that arises is whether it would be an interference with the due administration of justice if the examination of the plaintiff were to proceed before the Commission. A witness appearing before the Commission is subject to the obligations imposed by s. 6 of the Royal Commissions Act 1902 (Cth) and s. 16 of the Evidence Act 1958 (Vict.)."


case_title: Hammond v Commonwealth of Australia [1982] HCA 42 ; (1982) 152 CLR 188


case_text: It is important to note that the Panel does not adjudicate on disputed rights, nor does it exercise judicial power to resolve disputes. The distinction between the task of the Panel and the task of a Court such as the Federal Court, was clearly identified by Emmett J in Glencore International AG v Takeovers Panel (2005) 220 ALR 495, where his Honour said at [55] and [56]: "The making of binding declarations of right, by way of adjudication of disputes about rights and obligations that arise from the operation of the law upon past events or conduct, is a classical instance of the exercise of judicial power. However, the declarations for which s 657A provides are not binding declarations of right, in the sense in which that term is used in the context of the exercise of judicial power. The adjudication made by the review panel in the present case was not an adjudication of a dispute about rights and obligations of the parties that had arisen from the operation of the law on past events or conduct. The object of the review panel's declaration and orders was not to resolve a dispute about existing rights and obligations, by determining what those rights and obligations were, but to determine what legal rights and obligations should be created . The orders made under s 657D created rights and obligations that, prior to the making of the orders, did not exist. In that sense, the decisions of the review panel did not involve any adjudication of a dispute about existing rights and obligations. In applying for a declaration and orders, Centennial was not seeking the vindication of any right or obligation. The declaration made by the review panel did not resolve any actual or potential controversy as to existing rights: see, generally, Precision Data Holdings Ltd v Wills [1991] HCA 58 ; (1991) 173 CLR 167 at 188-190; 104 ALR 317 at 325; 6 ACSR 269 at 277." 38 Mr Ehrlich emphasised that the orders which Mr Hoff was seeking before the Panel included a declaration of the acceptance by Pendant Software of the notice of acceptance and transfer from Equity Partners dated 19 April 2006 to be unacceptable circumstances and that such acceptance be declared void. He submitted that if the Panel made a declaration that the transfer, which is the subject of this proceeding, was declared void then a declaration sought in this proceeding would be rendered nugatory. However, it is open to the Panel to make such a declaration for reasons unrelated to the reasons which might move the Court to grant the relief that is open to it in this proceeding. 39 The Panel, pursuant to s 657A of the Act , can declare circumstances in relation to the affairs of a company to be unacceptable circumstances. That opportunity or option is not available to the Federal Court. The Panel can make a declaration of unacceptable circumstances for a reason that it is not open to the Federal Court in respect of a matter on which the Federal Court cannot adjudicate upon. Although the directors reserve the right in this proceeding to allege that they are entitled to refuse registration of the transfer for just cause because of unlawful conduct on the part of Pendant Software the Federal Court cannot approach that matter on the basis of determining whether any conduct of Pendant Software constituted unacceptable circumstances as contemplated by s 657A of the Act . 44 If there be such unacceptable circumstances found which the Panel determines have an effect or consequence upon the transfer from Equity Partners to Pendant Software then that decision or declaration is not impinging upon the jurisdictional turf of the Federal Court. It is a consequence of the Panel undertaking the task identified by Emmett J in par [56] of his judgment in Glencore (supra). It is not the Panel making a decision on, or a declaration in relation to, the issue of the obligation of the directors on 4 or 11 May 2006. The consequence of the Panel's determination may be to remove the substratum of the basis for the registration of the transfer sought by Pendant Software, but that is not because of the Panel assuming the task of the Court or destroying the substratum of the matter before the Court. It is because there is a separate and independent basis for a challenge to the consequences of the carrying out and implementation of Pendant Software's takeover offer. 45 Mr Ehrlich submitted that what was left alive by the interlocutory order I made on 11 May 2006 was the lawfulness of the directors' conduct in relation to the transfer. Assuming for the moment that that submission is correct, it does not follow that the Panel cannot reach a conclusion in relation to the takeover which may equate with the unlawfulness of directors' conduct. It will not be a finding of unlawful conduct such as a Court might make, rather it is as a result of a finding of unacceptable circumstances within a framework of the takeover offer and the Panel provisions of the Act . 46 Accordingly I am not disposed to restrain Mr Hoff from continuing with his application to the Panel. I am also not disposed to dismiss the proceeding as against the first, fourth and fifth defendants or stay the proceeding against them as sought in their motion. Their counsel in argument did not press for dismissal. Mr Hoff and the third defendant are not parties to that motion. The terms of my order on 11 May 2006 leave it open for them to argue that they did not have to agree or consent to the registration of the transfer. Whilst that reservation is still alive it is premature to deal with that motion. Although the first, fourth and fifth defendants are prepared to register the transfer they are not prepared, or it was not clear whether they were prepared, to consent to judgment. There is also the issue of costs and whether Pendant Software was entitled to commence the proceeding having regard to the qualified resolution on 4 May 2006.


case_outcome: referred to

case_title: Clough v Oil & Natural Gas Corporation Ltd [No 3] [2007] FCA 2082

case_text: The applicant, Clough Engineering Ltd, by motion seeks an order granting leave to appeal from a judgment, Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 given on 21 December 2007. The motion is supported by an affidavit of Natalie Jane Wigg sworn 16 January 2008 deposing to the applicant's belief that there are reasonable grounds to appeal. The grounds of appeal are set out in a draft Notice of Appeal dated 16 January 2008. The first respondent, Oil and Natural Gas Corporation Limited ("ONGC") has filed an affidavit sworn on 7 February 2008 by its solicitor Mr Dean Edward Grondal. It contains matters concerning the pending arbitration proceedings commenced in India by Clough against ONGC in which various very substantial claims are made arising from the Construction Contract to which I refer below. 2 Clough and ONGC, are parties to a construction contract ("Construction Contract"). The formal contract was made on 6 January 2005. It is a lump sum contract in excess of US$215 million and is for the development of certain oil and gas fields in the Krishna Godavari Basin located off the coast of the State of Andhra Pradesh in India. Additionally, onshore facilities were to be constructed at Odalarevu, near Amalapuram also in Andhra Pradesh. Clough is an Australian company. ONGC is an Indian company. 3 By instruments dated January 2005 ("performance guarantees"), each of the second to fourth Respondents ("Banks") equally between them guaranteed the payment of 10% of the contract price to ONGC. This equated to a little more than US$21.5 million.


case_text: The well known test generally applied is whether the decision below is attended by sufficient doubt to warrant it being reconsidered by an appellate court and whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398, 400.


case_title: Dunstan v Orr [2007] FCA 873

case_text: The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich & Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [39] per Lander J with Moore J concurring.


case_text: In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; [2000] 104 FCR 564 at 584 [43] French J with whom the other members of the Court agreed, said that a "prima facie case exists for granting leave to appeal" if the judgment, although interlocutory, has the practical operation of finally determining the rights of the parties. 19 Clough contends that for the Court to refuse leave would effectively deny it of the right to appeal from a final decision as to the construction of an important provision of the Construction Contract as well as in relation to the following matters: (a) whether ONGC was entitled under the Construction Contract, on its proper construction, to call on the performance guarantees; (b) whether ONGC acted unconscionably in contravention of s 51AA of the Trade Practices Act 1974 (Cth) ( TPA ) in calling on the performance guarantees, in all of the circumstances; (c) whether Clough was, in fact and demonstrably, in breach of an obligation to renew the performance guarantees and an obligation to provide insurance certificates to ONGC, thereby depriving Clough's prima facie claim (which the primary judge accepted was made out) that Clough was entitled to relief for ONGC's contravention of s 51AA of the TPA ; and (d) whether the performance guarantees are not unconditional but conditional and whether they required ONGC to specify the amount actually payable by the banks, rather than making an umbrella claim for the full amount. 20 I made a final determination as to the proper construction of cl 3.3.3, although the motion then before me was interlocutory in nature: Clough Engineering Ltd [No 3] at [20]-[53]. 40 It submits that this distinguishes this case from those contemplated in Johnson Tiles at [43]. The "practical operation" of the judgment, it says, is not to determine finally the rights of the parties because the proper construction of cl 3.3.3 of the Construction Contract and the entitlement of ONGC to call upon the performance guarantees are all live issues, amongst others, in the arbitration proceedings. Further ONGC, through counsel, undertook to the Court that it would not raise the judgment of this Court as any barrier to those issues being determined again in the arbitration. That is not to say that the judgment of this Court would not be pressed on the Indian Arbitrators by ONGC as carrying considerable weight. 41 The view I take is that the judgment has the practical effect of determining the parties' rights. It is no answer to say that a different result might ensue in a different proceeding in another jurisdiction which could have the result of restoring the position of Clough. 42 In any event, if an appeal were successful it would not be necessary to prosecute that aspect of Clough's claims in the arbitration. The effect, then, of the submission is that the arbitration proceedings provide Clough with a de facto appeal. In my opinion, Clough ought be entitled to exhaust its legal entitlements in this Court.


case_title: Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122


case_title: Yap v Granich & Associates [2001] FCA 1735


case_title: Slaveski v Rotstein [2009] FMCA 443

case_text: appellant, Mr Slaveski, appeals from a judgment of Burchardt FM of the Federal Magistrates Court of Australia published on 6 May 2009. In the judgment below, his Honour dismissed Mr Slaveski's application to set aside a bankruptcy notice served on him on behalf of the respondent company; see Slaveski v Rotstein [2009] FMCA 443. On 1 April 2008, the Magistrates' Court of Victoria made a costs order in favour of the respondent against Mr Slaveski in the sum of $7,115.90. On 13 May 2008, the respondent served a bankruptcy notice on Mr Slaveski in respect of the costs order. On 30 May 2008, Mr Slaveski applied to the Federal Magistrates Court for the bankruptcy notice to be set aside. On that day Registrar Luxton extended the time for compliance with the bankruptcy notice. Several further extensions of time were granted throughout 2008. On 17 November 2008, Registrar Luxton dismissed Mr Slaveski's application to set aside the bankruptcy notice. On that day, Mr Slaveski countered with an application to set aside that dismissal. It was the rejection of that application which has led to the current appeal.


case_text: costs judgment was upheld by the Supreme Court of Victoria on 3 April 2009; see Slaveski v Rotstein and Associates Pty Ltd [2009] VSC 111 (" Rotstein and Associates "). The Court below observed that Mr Slaveski had on foot a proceeding against the Commonwealth Bank of Australia ("the CBA") in which Mr Slaveski claims $3 million in damages ("the CBA proceeding"). His Honour also referred to a claim by Mr Slaveski "against Mr Rotstein" in the Victorian Civil and Administrative Tribunal ("the VCAT claim"). Mr Rotstein is the sole director of the respondent. The VCAT claim is for $98,000 for stress, including mental stress, caused allegedly by Mr Rotstein in the course of acting for Mr Slaveski. Mr Slaveski's desire, his Honour observed, was to adjourn the proceeding concerning the bankruptcy notice until after the conclusion of the CBA proceeding and VCAT claim, but in particular the CBA proceeding. His Honour referred to three matters put by Mr Slaveski to support his application to set aside the bankruptcy notice. They were: the VCAT claim for $98,000 (referred to as a "counterclaim"); the application by Mr Slaveski for an instalment order in respect of the judgment sum of $7,115.90; and the judgment for $7,115.90 was obtained by conspiracy. His Honour treated the last matter as an allegation of fraud. The Court below referred to s 40(1)(g) of the Bankruptcy Act 1966 (Cth) in the context of compliance with the bankruptcy notice not being required if there exists a cross demand equal to or in excess of the judgment debt which could not have been raised in the proceeding which led to the debt. His Honour considered that the VCAT claim did not raise a tenable cross-claim against the respondent. It now appears that, subsequent to the judgment below, the matters raised in the VCAT claim were the subject of a counterclaim filed by the appellant in the Magistrates' Court of Victoria proceeding on 12 August 2009. Next, his Honour said that the application by Mr Slaveski to pay the judgment debt of $7,115.90 by instalments constituted an acknowledgement of that debt. In addition, Burchardt FM observed that a desire to pay by instalments does not constitute a cross demand. On the issue of the judgment debt being fraudulently obtained, his Honour referred to the judgment of Smith J in Rotstein and Associates , where the Supreme Court held the costs order was reasonably open and that no error was made in its making. Federal Magistrate Burchardt considered the CBA proceeding to be extraneous to the proceeding to set aside the bankruptcy notice. His Honour said that no valid ground had been established to set aside the bankruptcy notice either by reference to ss 40(1)(g) or 41 of the Act. The Federal Magistrate dealt at [52] [55] in his reasons for judgment with what he called the "bias issue". His Honour referred to his disclosure to Mr Slaveski that he owned a small tranche of shares in the CBA. His Honour understood Mr Slaveski not to object to him hearing the application but said that, had the objection been pressed, he would not have disqualified himself. The transcript of the hearing before his Honour is not before the Court on this appeal. His Honour maintains that no application was made for him to disqualify himself. In any event, his Honour said he would refuse to do so if one were made. That approach was correct only for the reason that any issue concerning the CBA was irrelevant to whether there was any valid basis to set aside the bankruptcy notice. The CBA is not the respondent to this appeal or an entity which is concerned in the costs order which has given rise to the bankruptcy notice. Even if the Federal Magistrate had more than a small tranche of shares in the CBA, he would not have disqualified himself for a valid reason had he stood down from hearing the application. Mr Slaveski raises other issues in his notice of appeal which are said to relate to a denial of natural justice and bias in the Court below. None of them relate to any issue of relevance or any aspect of the judgment below which reveals any appeallable error. In his notice of appeal and written submissions in support of his appeal, Mr Slaveski asserted that his Honour did not take into account the VCAT claim. That is not so, as can be seen from [8] [9] of these reasons. However, was his Honour correct in determining that the VCAT claim did not raise a tenable cross-claim against the respondent? The claim in VCAT for $98,000 was issued on 20 April 2009. Mr Slaveski has not demonstrated that the matters he sought to raise in VCAT against Mr Rotstein "could not have [been] set up in the action or proceeding in which the judgment or order was obtained"; see s 40(1)(g) of the Act. The costs order which led to the bankruptcy notice was made in a proceeding in the Magistrates' Court of Victoria for unpaid legal fees. The VCAT claim concerned the relationship between Mr Slaveski as client and the respondent as solicitor. No explanation has been given for the failure by Mr Slaveski to bring a cross-claim in the Magistrates' Court of Victoria proceeding, prior to 12 August 2009. Consequently s 40(1)(g) of the Act does not operate to assist Mr Slaveski to set aside the bankruptcy notice. In any event, Burchardt FM considered the VCAT claim to be untenable. His reasons for coming to that view are set out at [24] of his judgment where he recites the basis for the claim being that Mr Rotstein "caused [Mr Slaveski] to suffer a lot of stress, including mental stress". Finally, and again incorrectly, Mr Slaveski alleges that his Honour did not take into consideration his allegations of conspiracy. These allegations were outlined at [46] of his Honour's reasons. No issue was taken on appeal with their conclusive disposal by Smith J in the Supreme Court of Victoria. As Mr Slaveski has not demonstrated that he has a cross-claim, set off or cross demand against the respondent company and has no other valid basis upon which to apply to set aside the bankruptcy notice, the Court below was correct to dismiss his application to have it set aside. Accordingly, the appeal is dismissed. Mr Slaveski is to pay the respondent's costs of the appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 7 December 2009 McKenzie friend for the Appellant: Mrs S Slaveski Counsel for the Respondent: Mr H Rotstein Solicitor for the Respondent: Rotstein Lockwood Reddy Lawyers Pty Ltd Date of Hearing: 2 December 2009 Date of Judgment: 7 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1428.html


case_text: be a claim that may have been set up as a cross-claim, the claim must be a genuine or bona fide claim, with a fair chance of success; see Re Glew; Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331 ; [2003] FCA 373 at [9] [11] per Lindgren J. It was open to his Honour below to make that assessment about the merits of the VCAT claim. Mr Slaveski also alleges, wrongly, that the Federal Magistrate did not take into account Mr Slaveksi's application to pay the judgment debt in instalments. However, as his Honour observed, that application is an acknowledgement of the debt.


case_text: In the notice of appeal the particular given for illogical reasoning was the Tribunal's conclusion that the resignation was for the purpose of strengthening his claim for refugee status. The Tribunal did not give detailed reasons for its conclusion in that regard. The conclusion is perhaps implicit from the reasoning of the Tribunal regarding the claims and evidence of the appellant. It is not a question of illogical reasoning. Further, mere illogical reasoning does not of itself found jurisdictional error ( NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30] ). 15 However, the resignation is only relevant if, contrary to the finding of the Tribunal, the resignation did exist. The Tribunal reached a firm conclusion that the resignation did not exist and gave clear reasons for that conclusion. The finding with respect to s 91R(3) of the Act was not the basis for the Tribunal's conclusion. 16 The assertion that the Tribunal acted capriciously and arbitrarily was not, according to the appellant, an allegation of denial of procedural fairness or an allegation of bias. The basis for this ground was that the former member of the Chinese Embassy, who had applied for refugee status, had had his application granted.


case_text: On the application for review to the Federal Magistrate ( SZIOY v Minister for Immigration [2007] FMCA 1359) the appellant raised a number of grounds as to why the Tribunal decision was affected by jurisdictional error: (a) that the Tribunal took into account an irrelevant consideration; (b) that the Tribunal failed to afford procedural fairness; and (c) that the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning (at [6]). 9 By way of particulars the appellant said that the Tribunal's conclusion that he had signed the resignation for the purpose of strengthening his claim was illogical (at [8]). A further particular was that the Tribunal had made an incorrect assumption in assuming that the Chinese authorities were unaware of the resignation. 10 Federal Magistrate Nicholls considered the appellant's grounds of review at some length. His Honour found that there was no basis for the assertion that the Tribunal had taken into account an irrelevant consideration (at [13] [14]). In the absence of a transcript of the Tribunal hearing, a copy of which the Registrar had directed the appellant to file, but which was not filed (at [17]), his Honour found there was nothing to support an allegation of a denial of procedural fairness (at [18]). 11 In coming to that conclusion, his Honour independently considered whether the Tribunal had complied with procedural statutory requirements. His Honour considered that the conclusions of the Tribunal were logical. In coming to that conclusion his Honour put aside the question of whether or not illogical reasoning would be sufficient to reveal jurisdictional error (at [20]). 12 In his notice of appeal from the decision of the Federal Magistrate the appellant raises three grounds. In substance, those grounds are: 1. That the Tribunal's conclusions were based on illogical reasoning. 2. That the Tribunal acted capriciously and arbitrarily. 3. That the Tribunal made an incorrect assumption in assuming that the Chinese authorities were unaware of the resignation. 13 The appellant appeared in this appeal in person assisted by an interpreter. When asked for particulars of this ground, the appellant raised factual matters centred around what he says is the current position in China regarding freedom of speech. Those matters are not relevant to the appeal.


case_title: Amankwah v Minister for Immigration & Multicultural Affairs [1999] FCA 1162 , 91 FCR 248

case_text: Nor has there been any further explanation as to the manner in which it is said that the Appellant has been denied procedural fairness. None can be discerned. Section 425(1) of the Migration Act provides for an applicant to be extended an invitation to appear before the Refugee Review Tribunal. That sub-section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The right conferred by this provision is " clearly an important and central right in the merits review system established by Pt 7 of the Act ": Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration & Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5.


case_text: Leave to amend was opposed by Counsel for the Respondent Minister upon the basis that the ground raising " jurisdictional error " was unparticularised (other than alleging a further unidentified " error of law ") and that the grounds either raised no issues different to those in the existing Notice of Appeal , or had no prospects of success. An amendment, such as that proposed, which is ambiguous and raises nothing of substance, will not be permitted: Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228 , 43 FLR 129. 21 Those submissions of Counsel for the First Respondent were accepted and leave to amend was consequently refused. 22 A further reason for refusing leave to amend was the concern of the Court that the proposed amendments were obviously drafted by someone other than the Appellant, who (not surprisingly) had no knowledge of either what was intended to be conveyed by the concept of " jurisdictional error " or the " information " which, it was contended, should have been conveyed pursuant to s 424A. The Appellant could thus provide no assistance to the Court as to what was intended to be embraced by the proposed amendments which was not otherwise within the existing Notice of Appeal.


case_title: Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 , 113 FCR 541


case_text: Whoever may be the drafter of the Grounds of Appeal , the primary function of this Court is to resolve all such arguments as appropriately arise out of the decision the subject of appeal. The central principle is to do justice between the parties: Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. The " starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided ": SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4 ) [2007] FCA 1035 at [14] per Edmonds J.


case_title: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 , 183 ALR 188


case_text: Section 424A(1) employs the term " must " and compliance with that provision is, accordingly, mandatory: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 , 228 CLR 294 ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.


case_title: SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4 ) [2007] FCA 1035


case_title: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 , 235 ALR 609


case_text: An application to review that decision of the Tribunal was dismissed by the Federal Magistrates Court on 4 March 2008: SZLJN v Minister for Immigration & Citizenship [2008] FMCA 352. 5 The Appellant now appeals to this Court. The Notice of Appeal as filed sets forth as follows the Grounds of Appeal , namely: GROUNDS: 1. The Honourable Federal Magistrates Court erred in interpreting the construction of s424A of the Migration Act 1958 ('the Act"). 2. His Honour failed to determine that the purpose of s424A was not served in the proceeding of this applicant. 3. The Honourable Court also erred in law determining that the Refugee Review Tribunal ("the Tribunal") was in a breach of procedural fairness. 4. Additional details will be provided later. No " Additional details " have been provided. The Appellant appeared before this Court unrepresented, albeit with the assistance of an interpreter. He was unable to provide further clarification as to what was intended to be conveyed by the Grounds of Appeal . 6 It is considered that the appeal should be dismissed. 7 Section 424A of the Migration Act 1958 (Cth) provides as follows: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A ; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review ; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non disclosable information.


case_text: Cadbury claimed that Darrell Lea contravened ss 52 , 53 (c) and (d) of the Trade Practices Act 1974 (Cth), and committed the tort of passing off, by its use of the colour purple in connection with the marketing of its chocolate products. The claim was dismissed: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446. Darrell Lea now seeks an order for costs on an indemnity basis.


case_text: The jurisdiction to award indemnity costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth) is not in dispute. The circumstances in which such an order should be made cannot be circumscribed: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 230. The usual order for costs in favour of a successful party is on a party and party basis; to justify an order on an indemnity basis (or solicitor-client basis the distinction is a rather murky one: Burnie Port Corporation Pty Ltd v Bank of Western Australia [2003] TASSC 132 at [17] per Underwood J) there should be some special or unusual feature in the case: Preston v Preston [1982] 1 All ER 41 at 58.


case_title: Burnie Port Corporation Pty Ltd v Bank of Western Australia [2003] TASSC 132 at [17]


case_title: Preston v Preston [1982] 1 All ER 41 at 58


case_text: Alternatively, part of Darrell Lea's costs were incurred in response to Cadbury's late filed evidence it should recover those costs on an indemnity basis. Bound to fail? 4 The trial commenced on 20 March 2006. On 27 February Darrell Lea's solicitors wrote to Cadbury's solicitors asserting in effect that the claim was bound to fail and that indemnity costs would be sought. The letter canvassed a number of issues on which indeed, as it turned out, Darrell Lea subsequently succeeded; namely that Darrell Lea did not market moulded chocolate blocks, that its products were sold from different retail outlets, that purple was used by other chocolate manufacturers, that the words "Darrell Lea" and "Cadbury" were quite different, that Darrell Lea had been a well known brand since the 1920s, and that there was no evidence of actual consumer confusion. 5 However, the letter was not completely prescient as to the way the case unfolded. For example, Cadbury's use of purple was not confined, as the letter asserted, to moulded chocolate blocks from 1994. As the judgment finds, there was widespread use of purple by Cadbury, and in connection with chocolate blocks since the 1920s: see [15], [21], [24]-[29], [96]. Conversely, a major element in the ultimate conclusion against Cadbury, that purple was never used in isolation from the Cadbury name (see [82]-[87], [99]), was not mentioned in the letter. 6 Moreover, read as a whole the letter conveys the impression that the only relevant colour used by Darrell Lea was boysenberry, which was said to be a colour quite different from the shade of purple used by Cadbury. The finding at trial was that Darrell Lea made substantial use of a purple like the colour used by Cadbury, this being a colour distinct from the lighter shade boysenberry: see [41]-[43], [105]. I shall return to the boysenberry issue later. 7 The letter does not contain any offer of settlement, for example that if Cadbury discontinues Darrell Lea will not seek costs. It is not a Calderbank letter and is not part of any negotiation. If the letter had the effect now sought by Darrell Lea, it would become routine for litigants to write letters avowing the strength of their case and threatening indemnity costs in the event of success. Since one or other would be sure to win, indemnity costs would become the rule rather than the exception. 8 More generally, I am not satisfied that this proceeding was brought by Cadbury in "wilful disregard of the known facts or the clearly established law" ( Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401). The fact that there were, as Darrrell Lea submits, no previous cases where Trade Practices Act and passing off claims had succeeded in respect of a single colour is not conclusive; equally there were no cases where such claims had failed.


case_text: Disputes as to names and get-ups between rival traders constitute a familiar genre of commercial litigation. The applicable law is well settled. Questions as to the nature of the reputation enjoyed by a plaintiff and the effect of a defendant's conduct on consumers are likely to be problematic. In the present case Cadbury was obviously encouraged by the experts it had recruited. In the present case I held that most of this evidence was inadmissible: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. Judges of this Court and a learned commentator had previously expressed disquiet about evidence of this nature: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] , Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , Heydon, Cross on Evidence (7 th Australian ed, 2004) at 930. There had been no decision in this Court ruling directly that such evidence was inadmissible, although there had been English and Irish decisions to that effect: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] . So while a litigant properly advised should have realised that there were potential problems with evidence of this kind, it would be going too far to say that seeking to tender it demonstrated wilful disregard of clearly established law. 28 Certainly the size and cost of this litigation is troubling. Although there was no dispute as to the applicable law, and very little real dispute as to primary fact, the trial extended over 12 days, with experienced senior and junior counsel on both sides, and a 10,557 page court book. If Cadbury had its way, the trial would have included issues of quantum and also much expert evidence, and probably taken another week at least. The threat of ruinous costs in such litigation, even if it is "only" irrecoverable costs for a party who succeeds, has important practical consequences for competition: see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [30] - [31] . 29 That said, I do not think there is a proper foundation for a finding that Cadbury conducted the present litigation with the purpose of intimidating, or possibly destroying, a trade rival. While I doubt that those at Cadbury, or their advisors, lost much sleep in anxious rumination as to the dire consequences of this litigation for Darrell Lea, the fact remains that they had a legitimate commercial objective which, once decided upon, necessitated setting in motion the juggernaut of modern litigation. 30 Darrell Lea's characterisation of the case as concerned only with a "relatively trivial" period of use is not valid; see [14]-[21] above. In fact Darrell Lea continued to use a purple shade like that used by Cadbury and, importantly, asserted the right to do so at any time in the future. I found that Darrell Lea's assertion was justified, but that is not to say the matter was trivial from Cadbury's viewpoint.


case_text: Disputes as to names and get-ups between rival traders constitute a familiar genre of commercial litigation. The applicable law is well settled. Questions as to the nature of the reputation enjoyed by a plaintiff and the effect of a defendant's conduct on consumers are likely to be problematic. In the present case Cadbury was obviously encouraged by the experts it had recruited. In the present case I held that most of this evidence was inadmissible: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. Judges of this Court and a learned commentator had previously expressed disquiet about evidence of this nature: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] , Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , Heydon, Cross on Evidence (7 th Australian ed, 2004) at 930. There had been no decision in this Court ruling directly that such evidence was inadmissible, although there had been English and Irish decisions to that effect: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] . So while a litigant properly advised should have realised that there were potential problems with evidence of this kind, it would be going too far to say that seeking to tender it demonstrated wilful disregard of clearly established law.


case_title: Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21]


case_title: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527


case_title: Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20]


case_text: On 4 February 2003 Cadbury commenced an earlier proceeding, V50 of 2003, seeking essentially the same relief as in the present proceeding. Substantial discovery and other work was done, including the issue of some 50 subpoenas at the request of Cadbury. Cadbury failed to comply with a number of orders for the filing of evidence. Darrell Lea sought an order for dismissal under O 35A r 3 of the Federal Court Rules . On 23 December 2004 Ryan J adjourned the application to enable Cadbury, if so advised, to seek leave to discontinue: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718. Subsequently his Honour granted leave to discontinue on terms that allowed Cadbury to commence a fresh proceeding no later than 7 June 2005. There was also a term that in any such fresh proceeding the parties could have the benefit of discovery already completed and documents already obtained on subpoena: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2005] FCA 112. As to costs, his Honour decided at ([5]) "(o)n a fairly fine balance" not to order solicitor-client costs because in any fresh proceeding the parties would have the benefit of the substantial work already carried out. His Honour was not able to reach a conclusion about the propriety of Cadbury's institution and maintenance of the proceeding, except for the procedural or interlocutory derelictions. These, his Honour considered (at [6]), should not attract a punitive order for costs to be taxed on the higher scale. 11 The decision of Ryan J was not appealed. Obviously I cannot make any order with respect to the costs of the earlier proceeding. Senior counsel for Darrell Lea however argued that when the present proceeding was commenced Cadbury had all the material obtained in the course of the earlier proceeding and should therefore have been aware then that its claim was hopeless. 12 But if there had not been the earlier proceeding it can be assumed that, broadly speaking, the same interlocutory procedures would have been carried out in the present proceeding and the same material obtained. The only difference would be that Cadbury would have been appraised of that material at a later stage and, on Darrell Lea's argument, should have discontinued then. In the end, the question would be the same, namely whether on the material available the claim would show wilful disregard of known facts or clearly established law. For the reasons already given, I am not persuaded that such is the case. 13 The bare fact that a plaintiff discontinues a proceeding and commences another one does not of itself say anything as to the merits of the subsequent proceeding, still less as to whether or not failure in the subsequent proceeding should attract indemnity costs.


case_text: On 4 February 2003 Cadbury commenced an earlier proceeding, V50 of 2003, seeking essentially the same relief as in the present proceeding. Substantial discovery and other work was done, including the issue of some 50 subpoenas at the request of Cadbury. Cadbury failed to comply with a number of orders for the filing of evidence. Darrell Lea sought an order for dismissal under O 35A r 3 of the Federal Court Rules . On 23 December 2004 Ryan J adjourned the application to enable Cadbury, if so advised, to seek leave to discontinue: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718. Subsequently his Honour granted leave to discontinue on terms that allowed Cadbury to commence a fresh proceeding no later than 7 June 2005. There was also a term that in any such fresh proceeding the parties could have the benefit of discovery already completed and documents already obtained on subpoena: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2005] FCA 112. As to costs, his Honour decided at ([5]) "(o)n a fairly fine balance" not to order solicitor-client costs because in any fresh proceeding the parties would have the benefit of the substantial work already carried out. His Honour was not able to reach a conclusion about the propriety of Cadbury's institution and maintenance of the proceeding, except for the procedural or interlocutory derelictions. These, his Honour considered (at [6]), should not attract a punitive order for costs to be taxed on the higher scale.


case_text: The rejection of tendered evidence, whether expert or otherwise, is an everyday feature of all litigation. Often there is room for argument, as there was in this case, as to the admissibility of evidence. It might even be negligent for counsel to fail to attempt to tender evidence where there is authority against its admission: Re Knowles [1984] VR 751 at 768-770. In itself, the tendering of evidence held to be inadmissible is not indicative of wrongful conduct which might warrant an order for indemnity costs.


case_text: The Shelton survey is dealt with at [69]-[79] of the trial judgment. My ruling on its admissibility is Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364. 26 The unexplained failure of Cadbury to comply with a practice note issued by the Chief Justice of this Court is not a matter to be brushed aside. Practice notes are issued for the guidance of practitioners so as to improve the fairness and efficiency of litigation. It is a matter of concern that practitioners have taken a conscious decision to ignore this practice note, presumably because it was thought forensic advantage would thereby be obtained. However, as Cadbury contended, non-compliance with a practice note does not affect the admissibility of evidence and is not like disobedience of a Court order. So I agree with Cadbury's submission that in itself non-compliance does not warrant indemnity costs, although there is perhaps irony in the fact that the unilateral preparation of the survey had the result that it turned out to have little, if any, usefulness. 27 Darrell Lea submitted that by the time of final submissions the only matters of complaint were the "relatively trivial" issues of the (since discontinued) use of purple at Christmas 2000-2004. It was said the only explanation for Cadbury expending the "enormous resources" it had on this litigation was to "place enormous costs pressure on a much smaller entity in the chocolate confectionery trade and thereby achieving a 'positive' result through settlement". There was a "disproportionate application of resources to such a slender case". This contrasted with what was said to be "an inconsistently managed industry-wide campaign" (as to this latter aspect see the trial judgment at [55]-[68]).


case_title: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [30] - [31]


case_title: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 16

case_text: VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at [44] Gray J said: "The evidence of the three witnesses was information that the applicant gave for the purpose of the application." His Honour did not refer to the terms of s 426 when arriving at that conclusion. That decision was followed by Gordon J in SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [39] . She also referred to Bennett J's decision in SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653 at [23] - [24] . There, Bennett J again referred to the concept of an applicant calling a witness to give oral evidence on his or her behalf as being within the scope of s 424A(3)(b). Bennett J distinguished the contrary construction by Branson J in SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [17] - [22] . In SZECG [2006] FCA 733 at [21] Branson J followed the obiter reasons of Lee and Tamberlin JJ in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [96] - [99] per Lee J, with whose reasons Tamberlin J agreed at [108]. They held that s 424A was engaged where the tribunal relied on alleged inconsistencies between evidence of the applicant's husband and that of the applicant.


case_text: the appellant has given no indication of any further material which he might have tendered to the tribunal in order to deal with the position. He had already put before the tribunal the material he wished to rely upon for this aspect of the matter (leaving aside any response to any invitation under s 424A referred to in considering ground 3): cf Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at 12 [34] per McHugh, Gummow, Callinan and Heydon JJ. I reject this ground of appeal. This ground asserted that the tribunal assumed or took account of a consideration that the appellant could reasonably have been expected to have taken more steps to be reunited with Ms L and their child and that his failure to do so led to, or contributed to, its adverse assessment of the nature of their relationship. This ground amounts to an attack on the reasoning processes of the tribunal in arriving at its findings of fact. The tribunal explained why it found unpersuasive the appellant's case that he would live together with Ms L. It reasoned was that if the relationship had the strength of commitment that the appellant was asking the tribunal to find, it would have expected that the appellant would have done more to reunite with Ms L and his child. There was no unstated assumption or irrelevant consideration here. The tribunal expressed, in its own language, its lack of satisfaction with the appellant's claim based on its assessment of his conduct. In other words, the tribunal looked at the objective evidence that revealed that the appellant, over 8 years, apparently had not done more to be with Ms L and their child than pursue his protection visa claim here. It was open for the tribunal to find that this was not demonstrative of the level of commitment to the relationship that the appellant asserted.


case_text: tribunal departed from the procedure to afford procedural fairness mandated by ss 424A and 424AA of the Act. I cannot say that no different result would have ensued had the tribunal afforded the appellant the opportunity which ss 424A(1) and 424AA required him to have, however unlikely it is that he would have been able to dissuade the tribunal from taking the particular view it did of the facts: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-146 per Mason, Wilson, Brennan, Deane and Dawson JJ; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 [14] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.


case_text: my opinion, the statutory scheme does not permit that construction. First, a witness is not "information". The fact that an applicant for review asked the tribunal to take evidence from a person cannot make everything that the person said, if the tribunal called him or her to give evidence, information that the applicant gave to the tribunal. Self-evidently, the witness gave the information. It is a truism in litigation that there is no property in a witness. Moreover, the procedures of the tribunal are inquisitorial, not adversarial: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 at 17 [40] per Gummow ACJ, Callinan, Heydon and Crennan JJ, 43 [126] per Kirby J; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 230 CLR 486 at 491 [4] per Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ. It would be incongruous to hold that s 424A(3)(b) characterised everything that might be said by a witness nominated by an applicant for review as a person whom he or she wished the tribunal to call to give evidence as being "information ... that the applicant gave for the purpose of the application for review". The only "information" that could possibly be in that category would be the witness's name and contact details. What the witness came to say in evidence would be information that the witness, not the applicant for review, gave to the tribunal. Any other construction of the section would make no sense. The applicant for review, as s 426(3) provides expressly, has no right to require the tribunal to call anybody to give evidence, apart from himself or herself.


case_title: Minister for Immigration of Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259

case_text: is important to allow some latitude to an administrative decision-maker in the expression of his or her reasons. They are meant to inform readers what the decision-making process covered: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The trial judge found that the tribunal's conclusion was based on the evidence before it. I too am unable to detect any jurisdictional error in the tribunal's approach. I reject this ground. The appellant complained that the tribunal ignored relevant evidence as to the nature of the close relationship he said he had with Ms L. This argument is nothing more than a claim for merits review, and his Honour was correct to dismiss this ground on that basis. The appellant argued that the tribunal did not approach the question of whether he would be the subject of persecution involving serious harm to him or his family under s 91R(1)(b). That section provided that persecution had to involve serious harm to the person. The tribunal found that were he returned to Bangladesh, and unable to live in a familial relationship with Ms L and their child, his circumstances would not be substantially different to his present circumstances of separation from them - that he had endured in Australia since 2000. The appellant argued that there was a substantive difference, namely that the reason for the separation would be different: in Bangladesh it would be because of the threat of harm to the appellant or his family, whereas in Australia it was by operation of law (there being no visa at the moment allowing the co-habitation). However, his Honour found that the tribunal had concluded, on the merits, that the nature of the relationship between the appellant and Ms L was such that they did not have a strong commitment to live together and that, for that reason, any future separation would not in the circumstances constitute serious harm. I agree. The appellant argued that the tribunal should not have accepted DFAT Report 803. That report informed the tribunal that the Embassy in Bangladesh could not find any documentation there suggesting acts of violence against an atheist or non-believer and that while the Embassy accepted that he may be subjected to some cultural alienation, that did not amount to serious harm for the purposes of s 91R(1)(b). In addition, the tribunal found that there was no real chance that the appellant would suffer persecution due to his religion or conduct, whether religious or cultural, were he to move away from his local area in which there were, on his account, "Muslim extremists" and relocate to Dhakar or another big city. The tribunal accepted that serious harm might include a permanent separation from a person, spouse and child. The appellant did not suggest that the tribunal made any error in that regard. As his Honour found, this ground of challenge amounted simply to a disagreement with the tribunal's findings of fact. The argument relied on a footnote to DFAT Report 803 that referred to another report prepared by the State Department of the United States of America entitled "International Religious Freedom Report". The footnote referred to the latter report "for an overview of religious practices in Bangladesh". The appellant supplied the tribunal with a portion of the latter report in response to its s 424A letter dealing with the DFAT Report. However, it was a matter for the tribunal to assess what evidence on this topic it would accept. I see no error in what his Honour concluded.


case_outcome: discussed

case_text: tribunal used Ms L's evidence of her inquiries and her failure to tell the appellant of them as a basis for its rejection of the appellant's claim. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 , McHugh, Kirby and Hayne JJ held that the tribunal had failed to comply with s 424A(1) because it had not given an applicant for review notice in writing of evidence given by her daughter as a reason to affirm the decision under review: see SAAP 228 CLR at 308 [37] per McHugh J, 338 [144], 345 [170], 345-346 [172]-[173] per Kirby J, 348 [184] per Hayne J. In that case the daughter had been called as a witness by the tribunal of its own motion. As the statutory scheme makes clear, it is the tribunal, and not an applicant for review, which calls witnesses. Thus, s 426 provides that if in response to a notice issued to an applicant for review under ss 425 and 425A, that applicant notifies the tribunal within seven days that he or she "... wants the tribunal to obtain oral evidence from a person or persons named in the notice" pursuant to s 426(2), the tribunal is obliged to have regard to the applicant's wishes, but it is not required to obtain that evidence orally or otherwise from the person named in the applicant's notice (see s 426(3)). As a matter of statutory construction it is not open to suggest that an applicant for review can call any witness, other than himself or herself, pursuant to the right conferred under s 425(1). A number of single judges of the Court have expressed the view that information given by a witness nominated by an applicant for review under s 426(2) and called by the tribunal to give evidence amounted to "information ... that the applicant gave for the purpose of the application for review" so as to fall within the exception provided in s 424A(3)(b). They have held that the witnesses were in fact called by the applicant so that their evidence was information given by the applicant.


case_title: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141


case_title: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 230 CLR 486