case_title: Jess v Scott (1986) 12 FCR 187

case_text: An application for an extension of time was filed on 11 May 2007. Pursuant to O 52 r 15(2), the time limit may be extended for "special reasons". In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said at 195: "...the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 12 The first applicant has sought to explain the minor delay in filing the notice of appeal. If this were all, I should be disposed to grant the extension that he seeks. Indeed, the first respondent does not object to the extension of the time for filing a notice of appeal. This is not, however, all. This is a case where the prospects of success on the appeal are insufficient to warrant the grant of an extension of time. 13 The applicants' purported notice of appeal filed on 27 April 2007 records the following grounds: 1. His Honour erred in finding that the Refugee Review Tribunal considered whether the applicant was at risk of persecution because of his political associations. 2. His Honour erred in finding that the Refugee Review Tribunal's decision was not affected by jurisdictional error. 3. Further grounds and particulars to be provided upon provision of legal advice which is pending." As will be seen, the notice was vague and did not specify any grounds with particularity. 14 In written submissions filed on 24 July 2007, counsel for the applicants sought to make good this defect by raising the following grounds of appeal: 1. The Tribunal erred in failing to take into account relevant considerations; 2. The Tribunal breached s 424A of the Act; 3. The Tribunal breached common law natural justice obligations; and 4. The Tribunal failed to consider one of the integers of the applicants' case. 15 In the following consideration, I address each of these matters and others mentioned at the hearing.


case_outcome: referred to

case_text: I have also found it unnecessary to consider an affidavit sworn by Pamela Anne Summers on 30 July 2007. The first respondent faced difficulties in seeking to rely on it. The affidavit was not in evidence in the Federal Magistrates Court, although, according to the first respondent, this point was not taken below. I doubt that the first respondent's reliance on s 79 of the Evidence Act 1995 (Cth) was sustainable. I doubt that Ms Summers' familiarity with the practice and procedures of the Tribunal would constitute "specialised knowledge" upon which the opinion she gives can be said to be wholly or substantially based for the purposes of this provision: compare Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCA 70 at [106] - [107] per Black CJ, Emmett and Middleton JJ. The affidavit was not formally filed until the hearing, although, according to the first respondent, this was the result of the applicants' tardiness in filing their submissions. Ultimately, the first respondent did not press the tender of the affidavit, although counsel outlined a case for its admissibility, in the terms indicated.


case_text: At bottom, the gravamen of the applicants' complaint at the hearing was that the country information before the Tribunal should have led the Tribunal to conclude that the first applicant had a political profile that would have attracted the Chinese authorities' adverse attention if he returned to China. This is in essence to challenge the merits of the Tribunal's determination that the country information supported the contrary findings. This challenge, even if made out, would not support a finding of jurisdictional error. It is the Tribunal's responsibility to identify the country information upon which it rests its decision and to determine the weight to be given the various items of country information. This is not a concern of a Court on judicial review: compare NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.


case_outcome: cited

case_text: Further, it does not follow from the fact that the Tribunal made findings contrary to the first applicant's case, without specifically explaining why it preferred some information to other, that the Tribunal failed to consider the matters on which the first applicant relied. The law does not require the Tribunal to refute all items of evidence that are contrary to its findings of material fact: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 per McHugh J and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 593 per Kirby J.


case_title: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559


case_text: This evidence clearly comes within s 424A(3)(b) of the Act. By virtue of this provision, s 424A does not apply to information that the review applicant gave for the purpose of the application to the Tribunal. Further, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, Finn and Stone JJ made it plain at 477 that the word 'information' "does not encompass the Tribunal's subjective appraisals, thought processes or determinations...nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps". 32 The Tribunal also noted that the first applicant's evidence in his post-hearing submissions did not "correspond to the profile that [he] presented at the hearing or to the period that [he] has been in Australia". This evidence too comes within the exception in s 424A(3)(b). Finally, the Tribunal noted that: "...the applicant gave contradictory information at the hearing about his employment since his arrival in Australia. The Tribunal also notes the applicant's evidence that he did not lodge a protection visa application until eight years after his arrival because the Australian authorities do not publicise the success of applications. However, having regard to the above findings, the Tribunal need not reach a concluded view on this evidence." Again, it is plain enough that the exception in s 424A(3)(b) would apply and, in any event, this contradictory information did not play a part in the Tribunal's decision. 33 It seems, therefore, that to the extent that the Tribunal relied on inconsistencies in the first applicant's evidence, these inconsistencies arose from the applicant's evidence at the hearing and his submissions to the Tribunal. This material was plainly given by him to the Tribunal for the purpose of its review. Accordingly, s 424A was not engaged.


case_text: This is an appeal from the judgment of Scarlett FM delivered on 16 January 2006. There is a long background to the present proceedings which I shall summarise briefly. The full history is set out in the judgment of Scarlett FM: see Applicant S105/2003 v Minister for Immigration & Anor [2006] FMCA 125 ; and in the earlier judgment of Sackville J of 23 May 2002, reported as Applicant NADI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 649.


case_title: Applicant NADI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 649


case_text: The decision under appeal in the proceedings before me is the decision of the Federal Magistrates Court on the remitted application for an order nisi . The Federal Magistrate dismissed the application on 16 January 2006. It may be that the true character of the application has the consequence that the Federal Magistrate's decision was an interlocutory decision: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 ; (2003) 134 FCR 377 at 378 [3] . However, this point was not raised and I will proceed on the footing that the Federal Magistrate made a final decision which is the subject of this appeal.


case_text: An appeal to this Court is in the nature of a re-hearing, but the right of appeal exists to correct error by the Federal Magistrate. The burden lies on the appellant to demonstrate that the judgment under appeal is the consequence of some legal, factual or discretionary error: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4] . 8 The grounds raised before the Federal Magistrate were, with one exception, identical to the grounds raised in the proceedings before Sackville J. The new ground was that the Tribunal was obliged to consider, and had failed to consider, the possibility that the Bangladesh Nationalist Party ('BNP') might lose power in Bangladesh and that in such an eventuality, the appellant would be at risk of persecution if he were to return to Bangladesh. 9 The Federal Magistrate held that in respect of all of the grounds agitated before Sackville J, other than the new ground, a res judicata or issue estoppel applied which prevented the appellant from re-arguing the grounds that had been rejected by Sackville J. In my opinion, this finding by the Federal Magistrate was correct.


case_text: The Federal Magistrate observed that the new ground had not been specifically raised in the earlier proceedings before Sackville J. However, the Federal Magistrate found that if the applicant wished to rely on such a ground, it should have been raised in those earlier proceedings. He added that there was no evidence of any special circumstance as to why it was not raised in those earlier proceedings or why it should now be permitted to be raised: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65 ; and VWZG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1018.


case_title: S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65


case_title: VWZG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1018


case_text: This complaint goes to a purely factual issue. To paraphrase McHugh J in Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423 [67] , this issue was a function of the primary decision-maker par excellence. This argument cannot support the appeal and it does not indicate any error on the part of the Tribunal that is capable of supporting this appeal. 15 Secondly, the appellant's written submissions contended that the Tribunal erroneously relied upon country information that contained the following comment: 'The above independent evidence shows that people in the applicant's position can rely on the courts and on the authorities in regard to any false charges laid against him.' The appellant points to extracts from a report of the US State Department discussing the extent to which violence is a feature of politics in Bangladesh. Again, this complaint does not support the appeal. It goes to a factual matter lying within the province of the Tribunal. 16 The third ground raised in the written submissions was, in substance, the new ground I have already addressed, namely that the Tribunal did not consider the eventuality that the current regime of law and order in Bangladesh might collapse and that the old regime under which he claimed persecution might be reinstated. I have already rejected this argument as a basis for the appeal.


case_text: The Court has power to grant an extension of time for the lodging of an appeal against a decision of the Tribunal: see s 44(2A) of the AAT Act . A factor which will weigh heavily against the exercise of a discretion to enlarge time within which a proceeding may be commenced is that a proposed appeal has no reasonable prospects of success: see Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297 at [17] . 8 I have formed the view that the application for an extension of time should be refused because the proposed appeal is bound to fail and the granting of an extension would serve no useful purpose. 9 Section 44(1) of the AAT Act provides for a right of appeal "on a question of law, from any decision of the Tribunal ..." Order 53 r 3(2)(b) of the Federal Court Rules requires the notice of appeal is to state "the question or questions of law to be raised on the appeal ...".


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


case_text: It is, therefore, essential in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. Ms Luck has failed to identify any such question of law: see Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 325.


case_text: Section 44(1) only provides for an appeal from a "decision" of the Tribunal. In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, "an appeal under s 44(1) of the [AAT] Act lies only from a decision from the Tribunal which constitutes the effective decision or determination of the application for review." His Honour held that, in the normal case, "such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act." 13 The Tribunal in the present case has done no more than give directions with a view to readying Ms Luck's application for hearing. In no sense are the directions from which she seeks to appeal final or determinative of her application. They do not, therefore, constitute decisions for the purposes of s 44. It follows that she has no right of appeal under that section. 14 In her amended notice of appeal Ms Luck also seeks review of certain procedural decisions said to have been made by the Senior Member and an Assistant Registrar of the Tribunal under the Administrative Decisions (Judicial) Review Act 1977 (Cth) ("the ADJR Act "). 15 The relevant decisions and conduct of the Senior Member are said to be the decision that the respondent to the proceedings should be the Chief Executive Officer of Centrelink and that Centrelink should file relevant documents with the Tribunal together with a statement of its reasons for its decision and his conduct in giving these directions. 16 The decisions attributed to the Assistant Registrar were directions, said to have been given by her, as to the appropriate person to deal with any contacts made by Ms Luck with the Tribunal.


case_text: Ms Luck does not identify any relevant decisions within the meaning of the ADJR Act : see ss 3 , 5 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-8. None of the "decisions" to which she refers is a "determination for which provision is made by or under a statute, one that ... is substantive, final and operative." If anything, the Senior Member's directions might be characterised as conduct, that is, "action taken, rather than a decision made, for the purpose of a reviewable decision." In giving a direction that Ms Luck should only deal with a nominated officer the Assistant Registrar did nothing for the purpose of her or the Tribunal making a reviewable decision. Ms Luck does not identify any grounds on which a judicial review application might reasonably be expected to succeed in relation to the orders made by the Senior Member. She does no more than recite all of the grounds to be found in ss 5 and 6 of the ADJR Act without making any attempt to relate any particular ground to the conduct of the Senior Member. 22 Ms Luck's applications for enlargements of time, are, therefore, refused. 23 Ms Luck is able to apply to the Tribunal for any further directions which she considers need to be made to facilitate the hearing of her application. In particular she can invite the Tribunal to make an order identifying the relevant decision as that deemed to have been made on 3 July 2005. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 10 October 2008 Applicant was self represented Counsel for the Respondent: Mr Philip Ginnane Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 October 2008 Date of Judgment: 8 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1506.html


case_text: In this appeal, the Appellant contends that Federal Magistrate Nicholls erred in dismissing ( SZEPI v Minister for Immigration & Multicultural Indigenous Affairs & Anor [2006] FMCA 153) on 23 February 2006 an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') delivered on 21 September 2004 affirming a decision of the Minister's delegate refusing the Appellant's application for a protection visa. 2 The Appellant relies upon three grounds. Firstly, a contention that 'the judgment of Federal Magistrate Nicholls is absolutely incorrect'. Secondly, that Federal Magistrate Nicholls erred in failing to find an error of law on the part of the Tribunal constituting a jurisdictional error and a failure to find a procedural error in the Tribunal's decision constituting an absence of natural justice. Neither of the two limbs of this second ground are particularised. Thirdly, that Federal Magistrate Nicholls erred in failing to find that the Tribunal had failed to comply with its obligations pursuant to ss 424A(1) and 425 of the Migration Act 1958 (Cth) ('the Act'). 3 In the course of the hearing, the Appellant articulated two further grounds of error, namely, a failure on the part of the Federal Magistrate to find that the Tribunal failed to reach a 'fair decision' and secondly, a failure on the part of the Federal Magistrate to find that the Tribunal was biased. As to these further grounds, the contention is that the Tribunal failed to properly consider the Appellant's claim that if he returned to the People's Republic of China ('PRC') he would be arrested and thus the Tribunal failed to properly consider the Appellant's claims of a well-founded fear of persecution for a Convention reason.


case_text: The First Respondent says that since the Appellant 'republished' the relevant information to the Tribunal for the purposes of the application before the Tribunal, the Tribunal acted in a way entirely consistent with the principles identified in the following decisions of the Full Court of the Federal Court; Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; and the principles identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162; and notions of 'republication', discussed in the following decisions of the Federal Court; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 ; and SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611.


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2


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


case_title: SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611


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


case_text: In dealing with that issue, his Honour observed that in reliance upon VAF v Minister for Immigration & Multicultural Affairs [2004] FCAFC 123 , Stone and Finn JJ determined that when the Tribunal's reasons are evaluated for the purposes of s 424A(1) , the Court as a matter of judgment is required to isolate those elements of the Tribunal's decision which are the 'integral parts of the reasons'. His Honour also observed that having isolated the integral parts of the reasons for the Tribunal's decision and determined whether the decision rests upon information forming a part of the reason for affirming the decision, particulars of which, in breach of s 424A(1) , were not provided to the Appellant, and also rests on other grounds independent of that contravention and those grounds are not shown to be impeached, the decision of the Tribunal will remain a decision made according to law, having regard to any unimpeached independent ground. His Honour, in reaching this conclusion, relied upon VBAP of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 965 ; SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306 ; MZWPK v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1256 ; and VCAD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 1.


case_title: VBAP of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 965


case_title: SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306


case_title: MZWPK v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1256


case_title: VCAD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 1


case_text: In reaching this conclusion, his Honour relied upon observations in SZFKL v Minister for Immigration & Indigenous Affairs [2005] FCA 931. 55 His Honour observed that two factors influenced the conclusion that s 424A had no application in the circumstances of the present case. Firstly, the Tribunal had regard to the inconsistencies per se in the two versions of events proffered by the Appellant rather than acting in reliance upon an acceptance of information contained in the Appellant's protection visa application as information forming part of the reason for affirming the decision of the Respondent's Delegate. Secondly, the Appellant gave evidence at a hearing before the Tribunal in the course of which information concerning the Appellant's personal details, educational achievements and employment history was tested. These matters were specifically put to the Appellant. 56 Thus, in his Honour's view, the Appellant provided the relevant information to the Tribunal itself for the purposes of the review of the decision of the Respondent's Delegate. On that footing, the information was given by the Appellant to the Tribunal for the purposes of the application before the Tribunal as contemplated by s 424A(3)(b). 57 The feature of the ground of appeal going to s 424A which is decisive of the appeal is this. 58 By the Appellant's letter to the Tribunal dated 12 March 2004, in the context of the Appellant's application to the Tribunal for a review of the Delegate's decision, the Appellant contended that the Delegate had not considered all of his claims 'fairly and carefully' and that as a result of factual matters set out in the letter, the 'obvious' conclusion open was that, 'the decision-maker has never ever carefully considered my claims and he has never ever understood my circumstances correctly' . 59 In the context of an application to the Tribunal to undertake the jurisdictional task of reviewing the decision of the Respondent's Delegate, these statements of the Appellant can only be construed as an express request by the Appellant of the Tribunal to gather together before the Tribunal all of the documents and information describing the circumstances, facts and contentions going to the Appellant's claim for a protection visa including all material before the First Respondent's Delegate and to review that material so as to reach a focused, informed and accurate assessment for itself of the strengths and weaknesses of the claim to a well-founded fear of persecution. Such a request might be described as a republication but its proper character is an express request of the Tribunal to descend into the merits of the claim and to properly have regard to all of the facts, circumstances and contentions which are said by the Appellant to be persuasive of the Appellant's claim of a well-founded fear of persecution. In determining that question in the exercise of the Tribunal's jurisdiction, the Tribunal must necessarily have regard to all of the information put to the First Respondent by the Appellant in connection with the application for a protection visa. 60 In so doing, the Tribunal acts conformably with the express request of the Appellant. 61 In those circumstances, information that the Tribunal considers to be a part of the reason for affirming the decision by reason of its utility in determining whether there are inconsistencies in the versions given by the Appellant, is information given by the Appellant to the Tribunal for the purposes of s 424A(3)(b) and there is thus no obligation under s 424A(1) to give particulars of that information drawn from the Appellant's protection visa application to the Appellant so as to provide the Appellant with an invitation to comment on it. 62 No contentions have been addressed to the Court in relation to s 425 of the Act.


case_text: In Attorney-General of New Zealand v Ortiz and Others [1984] AC 1 , Lord Denning said at 15A-B: So far as England is concerned, whenever there is legislation providing that goods are to be forfeited for one cause or another, the law has always said that the forfeiture does not take effect until the goods are seized and that the title then relates back to the cause of forfeiture. If the owner or anyone else disputes the forfeiture, there are proceedings for condemnation. After condemnation, the title is perfected and can no longer be disputed by anyone. 34 Lord Ackner observed in the same case at 25C: An Act may provide for automatic forfeiture, or it may provide merely that the goods shall be liable to forfeiture if some further step is taken to that end.


case_title: Banwell v Erceg (1984) 1 NSWLR 90

case_text: In Banwell v Erceg (1984) 1 NSWLR 90, Yeldham J at 94 said: ... there is no reason to read down or qualify the words "in respect of any contravention" so that they relate only to proceedings for an offence in respect of such contravention. 30 In Olbers , French J considered s 106A of the FMA which made provision for the forfeiture of, inter alia, a boat used in an offence against various sections of that Act. French J rejected the submission that a conviction for the alleged offence upon which forfeiture arose was necessary before forfeiture under that section took effect: see [79]. His Honour concluded that satisfaction 'to a high degree of probability' that the offences had been committed was sufficient for s 106A of the FMA to take effect and it was not necessary for him to find that the offence had in fact been committed: see Olbers at [65]. 31 Applying the test of French J, if the Court is satisfied 'to a high degree of probability' that contraventions exist, such is sufficient to engage s 261A(1) of the Migration Act . It is not necessary that such 'contraventions' should constitute 'offences' for s 261A(1) to become operative. It follows that the entry into the migration zone of all Relevant Persons on the ship constituted contraventions of the Act. 32 Section 261A(1) of the Migration Act refers to things that are 'forfeited' to the Commonwealth. An analysis of the authorities referred to hereunder reveals that, depending upon the terms of the legislation, forfeiture may effect an immediate divestment of property or a divestment only after seizure has occurred.


case_text: In Bert Needham Automotive Co. Pty. Ltd. v Commissioner of Taxation of the Commonwealth of Australia (1976) 26 FLR 108 (applied by the Full Court in Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449) Rath J considered provisions of the Customs Act concerning the time at which the forfeiture occurred (see 114-115) and found at 114 that title passed to the Crown 'immediately upon a cause of forfeiture arising, without either seizure or condemnation. Such a strict construction is consistent with decisions on customs legislation both in England and Australia ( The Annandale (6); Burton v. Honan (7))' . His Honour continued: The terms "forfeiture", "seizure" and "condemnation" are not defined in the Act. They are well-known terms in customs legislation. The term "condemnation" refers not to a proceeding which has the effect of vesting title in the Crown, but to a proceeding which determines that upon some cause previously arising title had vested in the crown (Burton v. Honan (8); Willey v. Synan (9)).


case_text: In Burton v Honan [1952] HCA 30 ; (1952) 86 CLR 169 at 176 Dixon CJ said of s 229 of the Customs Act : On authority it is clear that under the provisions of s. 229 , provided the facts exist which justify a forfeiture, the title to the goods vests in the Crown when the forfeiture takes place in consequence of the occurrence of the facts. No further proceedings are requisite to make title, although of course further proceedings may be necessary either to vindicate the title of the Crown or to exclude the claim of some person asserting a right to the goods. 48 In response to the submissions of Tran, it is not a requirement of the Migration Act that notice of forfeiture be given to Tran. Section 261A has automatic effect upon the occurrence of the events prescribed in such section. It is not relevant to the automatic forfeiture that each of the Relevant Persons was subsequently granted a visa to remain in Australia, nor is it relevant that Tran was not convicted of an offence under s 232A of the Migration Act resulting from him establishing a defence under s 10.3(1) of the Criminal Code of a sudden and extraordinary emergency. Quite apart from the fact that an 'offence' is not required to enliven s 261A, the basis of the acquittal was an exculpatory provision, and contraventions exist under ss 42(1) , 232A and 233 of the Migration Act by virtue of the ship's entry into the Migration Zone. The contraventions arise from the action of either Tran or others on board the ship upon such entry, and it is the contraventions which result in forfeiture.


case_text: On or about 17 October 2005 on retrial the Applicant was acquitted by jury verdict because he established a defence to the offences, pursuant to section 10.3(1) of the Criminal Code in that he had brought the Relevant Persons to Australia in circumstances of sudden or extraordinary emergency. AGREED QUESTIONS FOR DETERMINATION 6 The agreed questions for determination pursuant to O 29 r 2 of the Rules are as follows: 1. Whether the Applicant's ship with the markings Hao Kiet BL91693TS ("Ship") was forfeited to the Commonwealth by force of section 261A of the Migration Act upon the Ship entering the migration zone or at any later time up to the time of its destruction. 2. If the answer to question 1 is "yes", whether the forfeiture of the Ship constituted an "acquisition of property" within the meaning of section 51(xxxi) of The Australian Constitution ("Constitution"). 3. If the answer to questions 1 and 2 is "yes", whether, absent "just terms" compensation, section 261A of the Migration Act would be invalid to the extent that it effected the forfeiture of the Ship. 4. If the answer to question 1 is "no", whether the destruction of the Ship pursuant to section 185B of the Customs Act constituted an "acquisition of property" within the meaning of section 51(xxxi) of the Constitution . 5. If the answer to question 4 is "yes", whether, absent compensation under section 4AB of the Customs Act , section 185B of the Customs Act would be invalid to the extent that it authorised the destruction of the Ship. 6. In the light of the answers to questions 1 to 5, whether the Applicant is entitled to an amount of compensation from the Respondent: 6.1. in respect of the forfeiture of the Ship, under section 3B of the Migration Act ; or 6.2. in respect of the destruction of the Ship, under section 4AB of the Customs Act . TRAN'S SUBMISSIONS 7 Tran submits that the ship was destroyed by the Australian Customs Service in the exercise of the power contained in s 185B of the Customs Act , and that the Migration Act accordingly has no application. 8 If the Migration Act does apply, Tran denies that he contravened any provisions of the Migration Act and accordingly submits that compensation representing just terms must be paid under s 51(xxxi) of the Commonwealth of Australia Constitution Act 1901 (Cth) ('the Constitution '). 9 Tran submits that a mere contravention of the Migration Act does not result in forfeiture under s 261A of such Act and that only a contravention constituting an offence may lead to the imposition of a penalty of which forfeiture may comprise a part. Tran submits that unlike the circumstances in Olbers Co Ltd v The Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67 in which an offence under s 100(2) of Fisheries Management Act 1991 (Cth) ('the FMA') resulted in forfeiture of a boat, Tran's ship was not used in the commission of an offence nor was it involved in any contravention of the Migration Act . Tran submits that no contravention of the Migration Act has occurred because Article 31(1) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ('the Refugee Convention') applies. Such article states: [t]he Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 10 Tran acknowledges that forfeiture without compensation might occur in circumstances where there has been a conviction for a criminal offence: see for example Mutual Pools & Staff Pty Limited v The Commonwealth of Australia (1994) 179 CLR 155 per Mason CJ at [21]. However, Tran submits that even in such limited circumstances the person who is to be deprived of his property is entitled to be notified: see Cheatley v The Queen and Others (1972) 127 CLR 291 at 299. 11 Tran submits that dispossession of the valuable property right without compensation cannot be imputed to the legislature unless such deprivation is expressed in unequivocal terms incapable of any other meaning: see The Commonwealth v Hazeldell Limited [1918] HCA 75 ; (1918) 25 CLR 552 per Griffiths CJ and Rich J at 563. Tran submits that the use of the word 'contravention' in s 261A should be narrowly construed in view of the provisions of the Refugee Convention set out above; authorities relating to the forfeiture of property resulting from the commission of an offence in relation to criminal offences rather than circumstances of asylum seekers; and having regard to the second reading speech of Minister Ruddock when s 261A was introduced into the Migration Act . In such speech the distinction was drawn between those who were in need of a 'safe haven' and those who were not genuine refugees. The Minister referred to the provisions inserted into the Migration Act and the Customs Act to allow the detention, forfeiture, seizure and disposal of, inter alia, ships used in smuggling operations. Tran submits that he has not been found to have committed any criminal offence under the Migration Act or to have been involved in any contravention thereof. 12 Tran submits that the provisions relating to seizure contained in s 261B of the Migration Act were not complied with, nor is there any evidence that the Secretary by his 'authorised officer' , as defined in s 5 of the Migration Act , detained, forfeited, seized or disposed of the ship. Nor was written notice of seizure as provided by s 261D of the Migration Act provided to Tran stating that the ship would be condemned if proceedings against its condemnation were not commenced within 21 days. 13 Accordingly Tran submits that whilst s 261A of the Migration Act provides for automatic forfeiture of a vessel used in contravention of such Act, the process contained in Subdivision C of Division 13A of Part 2 of the Migration Act must be completed for the ship to be finally forfeited. Had the prescribed process been followed, and had Tran made a claim for the ship under s 261F of the Migration Act , Tran's submission that he did not contravene the Migration Act would have been heard and taken into consideration. 14 In contradistinction to the facts in Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 , Tran submits that he successfully defended the charge under s 232A of the Migration Act since his defence relating to circumstances of sudden or extraordinary emergency succeeded under s 10.3(1) of the Criminal Code Act 1995 (Cth) ('the Criminal Code'). THE MIGRATION ACT 15 Division 13A of Part 2 of the Migration Act is entitled 'Automatic forfeiture of things used in certain offences'. Subdivision A is entitled 'Automatic forfeiture', and s 261A which is the only section contained in such Subdivision relevantly provides: Forfeiture of things used in certain offences (1) The following things are forfeited to the Commonwealth: (a) a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved: (i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or (ii) the entry or proposed entry into Australia of one or more such persons; 16 Subdivision B of Division 13A of Part 2 of the Migration Act is entitled 'Seizure'. Section 261B contained in such subdivision relevantly provides: Seizure of things used in certain offences (1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if: (a) the thing is forfeited under section 261A ; or (b) the authorised officer reasonably suspects that the thing is forfeited under section 261A. 17 Subdivision C of Division 13A of Part 2 of the Migration Act is entitled 'Dealing with things seized as automatically forfeited'. Section 261D within this subdivision provides for a notice requiring an officer to give written notice of seizure of the thing to the owner or, if the owner cannot be identified after reasonable inquiry, to the person having possession or custody of the thing immediately before it was seized: see s 261D(1). Section 261D(3) provides: Notice of seizure (3) The notice must: (a) identify the thing; and (b) state that the thing has been seized; and (c) specify the reason for the seizure; and (d) state that the thing will be condemned as forfeited unless: (i) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary, within 21 days, a claim for the thing; or (ii) within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and (e) specify the address of the Secretary. Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited. 18 Section 261E provides: Dealing with thing before it is condemned (1) The Secretary may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if: (a) its custody or maintenance creates serious difficulties; or (b) the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value. (2) If the Secretary causes the thing to be disposed of, the Secretary may cause the disposal to be subject to specified conditions. 19 Section 261F relevantly provides: Thing condemned if not claimed in time (1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 21 days after notice of seizure of the thing has been given under section 261D , unless: (a) the following conditions are satisfied: (i) within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary a written claim for the thing; (ii) the claim is in English; (iii) the claim sets out an address for service on the person making the claim; or (b) within the 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited. Note: Section 261I requires things condemned as forfeited to be dealt with in accordance with the Secretary's directions. 20 Section 261G relevantly provides: Dealing with claim for thing (1) If the thing is claimed under section 261F: (a) an officer may retain possession of the thing whether or not any proceedings for the condemnation of the thing have been instituted; and (b) the Minister may give a written order that the thing is not condemned as forfeited; and (c) unless an order has already been made under paragraph (b), the Secretary may give the claimant a written notice stating that the thing will be condemned as forfeited unless: (i) the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or (ii) within one month, the Minister gives a written order that the thing is not condemned as forfeited. Note 1: An officer may retain possession even if the Secretary does not give notice. If so, the claimant will be able to recover the thing only if a court orders its release to the claimant. Note 2: If the Secretary does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings. 21 Where a claim is made for the thing, s 261H is applicable. Section 261H has application where the Secretary gives the claimant notice under s 261G relating to the institution of proceedings to recover the thing or for a declaration that the thing is not forfeited (see s 261H(1)). 22 Section 261H(3) provides: (3) If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless: (a) before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or (b) at the end of the proceedings, there is: (i) an order for the claimant to recover the thing; or (ii) if the thing has been sold or disposed of--an order for the Commonwealth to pay the claimant an amount in respect of the thing; or (iii) a declaration that the thing is not forfeited. HAS THERE BEEN A CONTRAVENTION OF THE MIGRATION ACT ? 23 Section 261A of the Migration Act makes provision for forfeiture of a vessel where the vessel has been used or involved in a 'contravention' of the Migration Act . 24 The ship was boarded in the migration zone as defined in s 5 of the Migration Act and none of the 53 persons referred to in para 4 of the agreed statement of facts ('Relevant Persons') on board held a valid Australian visa. Section 42(1) of the Migration Act provides that, subject to various exceptions which are not relevant for present purposes, a non-citizen must not travel to Australia without a visa that is in effect. 25 Pursuant to s 15B(1)(b) of the Acts Interpretation Act 1901 (Cth) 'Australia' includes the coastal sea of Australia. Subsection 15B(4) of Acts Interpretation Act 1901 (Cth) defines 'coastal sea' as including the territorial sea of Australia. Section 5 of the Migration Act defines 'enter Australia' as follows: "enter Australia" , in relation to a person, means enter the migration zone.


case_text: The concept of forfeiture followed by condemnation is not novel to the Migration Act . In De Keyser v British Railway Traffic and Electric Company, Limited [1936] 1 KB 224 Lord Hewart CJ in referring to the term 'forfeited' in s 202 of the Customs Consolidation Act 1876 (UK) said at 230: There may be, where the owner of the property or other person authorized by him gives notice of a claim, an inchoate forfeiture which is to be completed by the combined forfeiture and condemnation contemplated by s. 226.


case_title: Dimella Constructions Pty. Ltd. v Stocker and Stocker (1976) 14 SASR 215

case_text: In Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237 Miles CJ said at 242: A contravention in the ordinary sense of that word involves an infringement or violation of a rule or standard or norm. A contravention of an Act does not necessarily involve the commission of an offence unless the Act or the law otherwise makes it so: cp Dimella Constructions Pty Ltd v Stocker (1976) 14 SASR 215.


case_text: The above decision has been applied subsequently: see Olbers . See also Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6 ; (1994) 179 CLR 297 at 306-307 where the majority said: Not every Commonwealth law with respect to the acquisition of property falls within s. 51(xxxi) of the Constitution . It may be outside that paragraph because, although it effects an acquisition of property, it is a law of a kind that is clearly within some other head of legislative power. That is the case with a law imposing taxation or a law providing for the sequestration of the estate of a bankrupt. Or it may be outside s. 51(xxxi) because it effects an acquisition of a kind that does not permit of just terms, as in the case of a law imposing a penalty by way of forfeiture. And, it may fall outside s. 51(xxxi) because it cannot fairly be characterized as a law for the acquisition of property for a purpose in respect of which the Parliament has power to make laws. That will generally be the case with laws directed to resolving competing claims or providing for "the creation, modification, extinguishment or transfer of rights and liabilities as an incident of, or a means for enforcing, some general regulation of the conduct, rights and obligations of citizens in relationships or areas which need to be regulated in the common interest".


case_title: Mutual Pools & Staff Pty. Limited v The Commonwealth of Australia (1994) 179 CLR 155


case_title: Nguyen v R [2005] WASCA 22

case_text: On 16 December 2004 the Supreme Court of Western Australia Court of Criminal Appeal allowed the appeal of Mr Nguyen ( Nguyen v R [2005] WASCA 22). 23. On or about 22 March 2005 the Crown conceded the Applicant's appeal on the basis of the decision in Nguyen v R and the Applicant's conviction was quashed. 24. By 2005, all of the Relevant Persons were granted Protection (Class XA) visas except for two who were granted Refugee and Humanitarian (Class XB) visas.


case_outcome: followed

case_title: Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449


case_title: Olbers Co Ltd v The Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67


case_text: In Powers v Maher [1959] HCA 52 ; (1959) 103 CLR 478 Kitto J, in referring to goods seized pursuant to s 229 of the Customs Act , said at 483: As to this, it may be observed that "forfeited" is an ambiguous word: it may mean either taken from a man or liable to be taken from him.


case_text: On or about 17 October 2005 on retrial the Applicant was acquitted by jury verdict because he established a defence to the offences, pursuant to section 10.3(1) of the Criminal Code in that he had brought the Relevant Persons to Australia in circumstances of sudden or extraordinary emergency. AGREED QUESTIONS FOR DETERMINATION 6 The agreed questions for determination pursuant to O 29 r 2 of the Rules are as follows: 1. Whether the Applicant's ship with the markings Hao Kiet BL91693TS ("Ship") was forfeited to the Commonwealth by force of section 261A of the Migration Act upon the Ship entering the migration zone or at any later time up to the time of its destruction. 2. If the answer to question 1 is "yes", whether the forfeiture of the Ship constituted an "acquisition of property" within the meaning of section 51(xxxi) of The Australian Constitution ("Constitution"). 3. If the answer to questions 1 and 2 is "yes", whether, absent "just terms" compensation, section 261A of the Migration Act would be invalid to the extent that it effected the forfeiture of the Ship. 4. If the answer to question 1 is "no", whether the destruction of the Ship pursuant to section 185B of the Customs Act constituted an "acquisition of property" within the meaning of section 51(xxxi) of the Constitution . 5. If the answer to question 4 is "yes", whether, absent compensation under section 4AB of the Customs Act , section 185B of the Customs Act would be invalid to the extent that it authorised the destruction of the Ship. 6. In the light of the answers to questions 1 to 5, whether the Applicant is entitled to an amount of compensation from the Respondent: 6.1. in respect of the forfeiture of the Ship, under section 3B of the Migration Act ; or 6.2. in respect of the destruction of the Ship, under section 4AB of the Customs Act . TRAN'S SUBMISSIONS 7 Tran submits that the ship was destroyed by the Australian Customs Service in the exercise of the power contained in s 185B of the Customs Act , and that the Migration Act accordingly has no application. 8 If the Migration Act does apply, Tran denies that he contravened any provisions of the Migration Act and accordingly submits that compensation representing just terms must be paid under s 51(xxxi) of the Commonwealth of Australia Constitution Act 1901 (Cth) ('the Constitution '). 9 Tran submits that a mere contravention of the Migration Act does not result in forfeiture under s 261A of such Act and that only a contravention constituting an offence may lead to the imposition of a penalty of which forfeiture may comprise a part. Tran submits that unlike the circumstances in Olbers Co Ltd v The Commonwealth of Australia and Another [2004] FCA 229 ; (2004) 136 FCR 67 in which an offence under s 100(2) of Fisheries Management Act 1991 (Cth) ('the FMA') resulted in forfeiture of a boat, Tran's ship was not used in the commission of an offence nor was it involved in any contravention of the Migration Act . Tran submits that no contravention of the Migration Act has occurred because Article 31(1) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ('the Refugee Convention') applies. Such article states: [t]he Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 10 Tran acknowledges that forfeiture without compensation might occur in circumstances where there has been a conviction for a criminal offence: see for example Mutual Pools & Staff Pty Limited v The Commonwealth of Australia (1994) 179 CLR 155 per Mason CJ at [21]. However, Tran submits that even in such limited circumstances the person who is to be deprived of his property is entitled to be notified: see Cheatley v The Queen and Others (1972) 127 CLR 291 at 299. 11 Tran submits that dispossession of the valuable property right without compensation cannot be imputed to the legislature unless such deprivation is expressed in unequivocal terms incapable of any other meaning: see The Commonwealth v Hazeldell Limited [1918] HCA 75 ; (1918) 25 CLR 552 per Griffiths CJ and Rich J at 563. Tran submits that the use of the word 'contravention' in s 261A should be narrowly construed in view of the provisions of the Refugee Convention set out above; authorities relating to the forfeiture of property resulting from the commission of an offence in relation to criminal offences rather than circumstances of asylum seekers; and having regard to the second reading speech of Minister Ruddock when s 261A was introduced into the Migration Act . In such speech the distinction was drawn between those who were in need of a 'safe haven' and those who were not genuine refugees. The Minister referred to the provisions inserted into the Migration Act and the Customs Act to allow the detention, forfeiture, seizure and disposal of, inter alia, ships used in smuggling operations. Tran submits that he has not been found to have committed any criminal offence under the Migration Act or to have been involved in any contravention thereof. 12 Tran submits that the provisions relating to seizure contained in s 261B of the Migration Act were not complied with, nor is there any evidence that the Secretary by his 'authorised officer' , as defined in s 5 of the Migration Act , detained, forfeited, seized or disposed of the ship. Nor was written notice of seizure as provided by s 261D of the Migration Act provided to Tran stating that the ship would be condemned if proceedings against its condemnation were not commenced within 21 days. 13 Accordingly Tran submits that whilst s 261A of the Migration Act provides for automatic forfeiture of a vessel used in contravention of such Act, the process contained in Subdivision C of Division 13A of Part 2 of the Migration Act must be completed for the ship to be finally forfeited. Had the prescribed process been followed, and had Tran made a claim for the ship under s 261F of the Migration Act , Tran's submission that he did not contravene the Migration Act would have been heard and taken into consideration. 14 In contradistinction to the facts in Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 , Tran submits that he successfully defended the charge under s 232A of the Migration Act since his defence relating to circumstances of sudden or extraordinary emergency succeeded under s 10.3(1) of the Criminal Code Act 1995 (Cth) ('the Criminal Code'). THE MIGRATION ACT 15 Division 13A of Part 2 of the Migration Act is entitled 'Automatic forfeiture of things used in certain offences'. Subdivision A is entitled 'Automatic forfeiture', and s 261A which is the only section contained in such Subdivision relevantly provides: Forfeiture of things used in certain offences (1) The following things are forfeited to the Commonwealth: (a) a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved: (i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or (ii) the entry or proposed entry into Australia of one or more such persons; 16 Subdivision B of Division 13A of Part 2 of the Migration Act is entitled 'Seizure'. Section 261B contained in such subdivision relevantly provides: Seizure of things used in certain offences (1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if: (a) the thing is forfeited under section 261A ; or (b) the authorised officer reasonably suspects that the thing is forfeited under section 261A. 17 Subdivision C of Division 13A of Part 2 of the Migration Act is entitled 'Dealing with things seized as automatically forfeited'. Section 261D within this subdivision provides for a notice requiring an officer to give written notice of seizure of the thing to the owner or, if the owner cannot be identified after reasonable inquiry, to the person having possession or custody of the thing immediately before it was seized: see s 261D(1). Section 261D(3) provides: Notice of seizure (3) The notice must: (a) identify the thing; and (b) state that the thing has been seized; and (c) specify the reason for the seizure; and (d) state that the thing will be condemned as forfeited unless: (i) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary, within 21 days, a claim for the thing; or (ii) within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and (e) specify the address of the Secretary. Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited. 18 Section 261E provides: Dealing with thing before it is condemned (1) The Secretary may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if: (a) its custody or maintenance creates serious difficulties; or (b) the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value. (2) If the Secretary causes the thing to be disposed of, the Secretary may cause the disposal to be subject to specified conditions. 19 Section 261F relevantly provides: Thing condemned if not claimed in time (1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 21 days after notice of seizure of the thing has been given under section 261D , unless: (a) the following conditions are satisfied: (i) within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary a written claim for the thing; (ii) the claim is in English; (iii) the claim sets out an address for service on the person making the claim; or (b) within the 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited. Note: Section 261I requires things condemned as forfeited to be dealt with in accordance with the Secretary's directions. 20 Section 261G relevantly provides: Dealing with claim for thing (1) If the thing is claimed under section 261F: (a) an officer may retain possession of the thing whether or not any proceedings for the condemnation of the thing have been instituted; and (b) the Minister may give a written order that the thing is not condemned as forfeited; and (c) unless an order has already been made under paragraph (b), the Secretary may give the claimant a written notice stating that the thing will be condemned as forfeited unless: (i) the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or (ii) within one month, the Minister gives a written order that the thing is not condemned as forfeited. Note 1: An officer may retain possession even if the Secretary does not give notice. If so, the claimant will be able to recover the thing only if a court orders its release to the claimant. Note 2: If the Secretary does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings. 21 Where a claim is made for the thing, s 261H is applicable. Section 261H has application where the Secretary gives the claimant notice under s 261G relating to the institution of proceedings to recover the thing or for a declaration that the thing is not forfeited (see s 261H(1)). 22 Section 261H(3) provides: (3) If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless: (a) before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or (b) at the end of the proceedings, there is: (i) an order for the claimant to recover the thing; or (ii) if the thing has been sold or disposed of--an order for the Commonwealth to pay the claimant an amount in respect of the thing; or (iii) a declaration that the thing is not forfeited. HAS THERE BEEN A CONTRAVENTION OF THE MIGRATION ACT ? 23 Section 261A of the Migration Act makes provision for forfeiture of a vessel where the vessel has been used or involved in a 'contravention' of the Migration Act . 24 The ship was boarded in the migration zone as defined in s 5 of the Migration Act and none of the 53 persons referred to in para 4 of the agreed statement of facts ('Relevant Persons') on board held a valid Australian visa. Section 42(1) of the Migration Act provides that, subject to various exceptions which are not relevant for present purposes, a non-citizen must not travel to Australia without a visa that is in effect. 25 Pursuant to s 15B(1)(b) of the Acts Interpretation Act 1901 (Cth) 'Australia' includes the coastal sea of Australia. Subsection 15B(4) of Acts Interpretation Act 1901 (Cth) defines 'coastal sea' as including the territorial sea of Australia. Section 5 of the Migration Act defines 'enter Australia' as follows: "enter Australia" , in relation to a person, means enter the migration zone. 51 The authority relied upon by the Commonwealth, namely Lawler , concerned the forfeiture of a foreign fishing boat used for unlawful commercial fishing in the Australian Fishing Zone. Section 100(1) of the FMA requires a licence for a person to use a foreign boat for commercial fishing in the Australian Fishing Zone. Section 106(1)(a) of the FMA empowers the Court to order forfeiture of a boat used in the commission of the offence. The High Court in Lawler concluded that such forfeiture did not amount to an 'acquisition of property' for the purpose of s 51(xxxi) of the Constitution . Deane and Gaudron JJ observed (at 284) that there were two reasons why some laws 'stand outside s 51(xxxi) ' . Those reasons were firstly that the guarantee of 'just terms' does not apply to laws 'clearly encompassed in another power' and secondly that there was no guarantee of 'just terms' 'outside the area in which s. 51(xxxi) operates as a grant of power' . Their Honours concluded at 285: That phrase [acquisition of property on just terms] must be read in its entirety and, when so read, it indicates that s. 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with law in connexion with which "just terms" is an inconsistent or incongruous notion. Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorizing seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s. 51(xxxi). 52 In Lawler McHugh J said at 292-293: The complete answer to the contention of the prosecutors is that an order made under s. 106 does not effect an acquisition of property for the purposes of s. 51(xxxi). An order made under s. 106 is a drastic but incidental measure whose purpose is to facilitate compliance with those provisions of the Act which regulate commercial fishing in Australian waters. When the forfeiture of property is a reasonably proportional consequence of a breach of a law passed under a power conferred by s. 51 of the Constitution , no acquisition of property for the purpose of s. 51(xxxi) takes place. The notion of paying fair compensation to the owner of property which is validly forfeited to the Crown for a breach of the law is simply absurd. In the case of the forfeiture of property to the Commonwealth for breach of a law of the Parliament, the question is whether the forfeiture is reasonably incidental to the exercise of a power other than s. 51(xxxi). If it is not, the forfeiture is invalid. If it is, s. 51(xxxi) has no operation. 54 Consistent with the finding in Lawler and in Olbers , there has been no 'acquisition of property' within s 51(xxxi) of the Constitution in the present proceedings because of the forfeiture of the ship. It follows that unless the forfeiture is set aside Tran is not eligible for compensation under s 4AB of the Customs Act or under s 3B of the Migration Act . 55 Although the Commonwealth wrote to Tran on 10 July 2003 informing him that the ship was destroyed pursuant to s 185B(4) of the Customs Act , at that time Tran had no rights in the ship in consequence of its automatic forfeiture. Such letter cannot operate to provide any rights in the ship if a deprivation of such rights had already occurred. If the forfeiture is successfully challenged, a divesting of rights in the ship from the Commonwealth to Tran may result. In this event, because the ship had been destroyed, any claim by Tran could only be made for compensation arising out of the loss of the ship. 56 The questions asked are to be answered as follows: 1. Section 261A has effected an automatic forfeiture of the ship when it entered the migration zone. That forfeiture remains contestable because the ship has never been condemned as forfeited, for all legal purposes, in the Commonwealth as legal owner of the property. 2. The forfeiture of the ship did not constitute an acquisition of property within the meaning of s 51(xxxi) of the Constitution , but if a successful challenge is made to the purported forfeiture, circumstances could arise in which an acquisition of property within s 51(xxxi) may have occurred. 3. 4. The Court declines to answer these questions because it is unnecessary to do so in view of the answers to questions 1 and 2. 5. 6. Whilst the forfeiture remains, the Applicant is not entitled to compensation under either the Migration Act or the Customs Act . I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 16 June 2008 Counsel for the Applicant: Ms Jowett Solicitor for the Applicant: Mr Varess Counsel for the Respondent: Mr Kennett Solicitor for the Respondent: Ms Deane Date of Hearing: 6 February 2008 Date of Judgment: 16 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/901.html


case_title: Re Venice Nominees Pty Ltd (Receiver and Manager appointed) (In liquidation) (1992) 108 FLR 237


case_title: The Annandale (1877) 2 PD 218


case_title: The Commonwealth v Hazeldell Limited [1918] HCA 75 ; (1918) 25 CLR 552


case_text: In Whim Creek Consolidated NL v Colgan and Another [1991] FCA 467 ; (1991) 31 FCR 469 the Full Court considered the application of s 205 of the Customs Act which provided that where a notice was served in respect of goods seized pursuant to s 203 of the Customs Act , 'the goods shall be deemed to be condemned as forfeited to the Crown' unless the owner gave notice stating a claim to the goods. At 476 O'Loughlin J (with whom Spender and French JJ agreed) said ' [h] istorically the word "forfeiture" and its derivatives has meant an immediate loss of all interest in property as well as a loss of the right of possession '. His Honour continued: Indeed, the concept of forfeiture does not evolve out of any administrative decision to which the provisions of the Judicial Review Act might attach; on the contrary, it arises by force of statute upon the happening of certain prior events. 38 In Olbers French J considered the operation of s 106A of the FMA which is contained in Subdivision B of Division 6 thereof and entitled 'Automatic forfeiture of things'. Except that s 106A of the FMA provides for forfeiture upon the commission of 'an offence' whereas the provisions of s 261A of the Migration Act provides for forfeiture upon 'a contravention', the provisions of each Act relating to forfeiture are equivalent. Each Act also contains provisions having the same effect relating to seizure and subsequent dealings with the thing including condemnation. Section 106C of the FMA requires the giving of notice of seizure and s 106E makes provision for the thing to be 'condemned as forfeited to the Commonwealth' unless a claim is made for the thing within 30 days after notice of the seizure. 39 French J (at [80]) concluded in Olbers that upon a proper construction of s 106A of the FMA the vessel ('the Volga') which entered Australian waters contrary to the licensing provision of the FMA 'was forfeited to the Commonwealth and passed into the ownership of the Commonwealth in January 2002' , namely when the Volga first entered such waters. In affirming such decision, the Full Court at [21] observed that the forfeiture effected by s 106A constituted a forfeiture of all interest in the Volga. 40 Applying the rationale adopted in Olbers to the provision of the Migration Act , automatic forfeiture of the ship occurred pursuant to s 261A of the Migration Act upon the entry of the ship into the migration zone on 1 July 2003 carrying the Relevant Persons in contravention of the Migration Act . 41 Such forfeiture, although effective to transfer all rights in the ship to the Commonwealth, did not finally determine that such rights should remain with the Commonwealth. French J concluded in Olbers at 89: The question whether property has been forfeited pursuant to s 106A remains contestable after seizure until the exhaustion or non-invocation of the mechanisms for contesting it under Subdiv C. That it remains for a time a contestable question does not mean that its resolution is in any sense discretionary. The characterisation of a thing as "condemned as forfeited to the Commonwealth" under s 106E does not involve the final transfer of title in something which was forfeited by operation of s 106A...Of course if it were the case that the thing purportedly forfeited could be shown, after condemnation, not to have been forfeited, then it might be said that condemnation had effected a divesting. That is not a question which needs to be finally considered here. It does seem however that the condemnation provisions have at least a privative character. 42 Upon forfeiture under s 261A of the Migration Act , a procedure is available to determine whether the forfeiture is confirmed by condemnation under s 261F of such Act. In the present proceedings neither seizure nor the condemnation process prescribed by Subdivision C of Division 13A of Part 2 the Migration Act have been invoked. However, the fact that there has been no seizure or condemnation has no effect upon the forfeiture effected by s 261A of the Migration Act . That forfeiture has vested all rights of the ship in the Commonwealth. 43 After considering the meaning of the word 'condemned', the Full Court in Olbers at 455 said at [17]: Understood in this way the provisions of ss 106B to 106G do not themselves effect a forfeiture of the relevant property. Nor are they to be understood as conferring any broad (indeed, unfettered) discretion upon the Court. Rather, they provide a mechanism by which it can be adjudged and formally recorded whether a forfeiture has already occurred. 49 The issue of visas to the Relevant Persons, the acquittal of Tran and the operation of the Refugee Convention may become relevant during proceedings for condemnation if the forfeiture is challenged. However, in the absence of any challenge to the forfeiture it follows there has been a deprivation of all of Tran's rights in the ship from the time it entered the migration zone. Since the forfeiture remains a 'purported forfeiture' (see French J in Olbers at [74]-[75]) because the condemnation process has not been invoked, the forfeiture is not 'beyond question' (see French J in Olbers at [79]). 50 The Commonwealth submits that no compensation is payable under s 51(xxxi) of the Constitution because Tran has no interest in the ship as a consequence of its forfeiture.


case_text: context and the characteristics or properties of the original and the substitute can assist in ascertaining whether what is put forward is truly a substitution for what was originally there. Usually, it will be a question of fact whether a substitution or something more radical has occurred in a given case. In competition law, s 4E of the Trade Practices Act 1974 (Cth) provides a definition of a market as including a market for the particular goods or services under consideration "and other goods or services that are substitutable for ..." the former. Yet, the mere fact that a consumer will on occasion purchase tea instead of coffee does not necessarily mean that because of that substitution tea and coffee cannot be distinct goods with their own separate markets. On the other hand, it maybe that, if the relevant market is the hot beverage market, they will be substitutes; hence the importance of the context in which substitution is assessed: cp Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 332 per Lockhart, Wilcox and Gummow JJ; Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 188 per Mason CJ and Wilson J.


case_outcome: applied

case_text: the construction of s 12DL(2) favoured by the Commission would broaden the scope of the strict liability offence created by s 12DL(1) in a manner that strains the natural and ordinary meaning of "a card of the same kind" as referring to one or other of the two cards referred to in s 12DL(1). This invites a more cautious approach to the looser construction of this criminal provision than the Commission's contention: Stevens 224 CLR at 210-211 [45]; Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; and see too R v Adams [1935] HCA 62 ; (1935) 53 CLR 563 at 567-568 where Rich, Dixon, Evatt and McTiernan JJ said: "No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category ." (emphasis added)


case_text: construction of s 12DL must be approached having regard to its dual operation as a section that imposes both criminal and civil liability for a contravention of either s 12DL(1) or (4). The heading to the subdivision in the Act of which s 12DL forms part is headed "Consumer protection". That heading provides part of the context in which the substantive provisions of Subdiv D of Div 2 of Pt 2 of the Act must be construed: s 13 of the Acts Interpretation Act 1901 (Cth). The heading should be taken into consideration in determining the meaning of those sections in cases of ambiguity. However, as Mason CJ, Deane, Dawson and Gaudron JJ cautioned in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601, the heading does not control the permissible scope of the substantive provisions within the subdivision in the Act. The heading cannot properly be used to impose an unnaturally constricted or expanded meaning upon the words of those substantive provisions: cf Concrete Constructions 169 CLR at 601-602, 603-604.


case_outcome: discussed

case_text: expression "of the same kind" does not require that the previous and later cards are absolutely identical. A retail business will replace or substitute new goods for those it has sold. Sometimes suppliers of such goods discontinue production of a particular good or go out of business. The trader will often seek a replacement or substitute good that has some identity or characteristic in common with the unavailable product. The new good may be an improved version of the old with more functions or features, perhaps having shed others: cf the discussion in the dissenting judgments of Stephen J and Aickin J in Federal Commissioner of Taxation v St Hubert's Island Pty Ltd (In Liq) [1978] HCA 10 ; (1978) 138 CLR 210 at 218 and 242-243.


case_text: Commission accepted that because a card could be sent in substitution for another of the same kind, the substitute did not have to be identical with the original card. But, it argued that the words "of the same kind" in s 12DL(2) should be construed as meaning "substantially of the same nature or type" following the view of Young J on that expression as used in s 4(1) of the Futures Industry (NSW) Code in Corporate Affairs Commission (NSW) v Lombard Nash International Pty Ltd (1986) 11 ACLR 566 at 569-570. The Commission argued that the word "kind" in s 12DL(2) did not relate back to just whether the card was a credit card or a debit card. This was because, it said, the definitions in s 12DL(5) did not create a bright line distinction between the two terms; indeed each card could have features of the other within their defined meanings. Thus, the Commission contended, one had to consider the functionality of each card in order to ascertain whether the cards were "of the same kind". This was a question of fact and degree. The Commission argued that the functionality of a Handycard was more limited than the new card. It said that the Handycard was used in a straightforward, simple manner requiring personal presence of the card holder and the use of his or her PIN to access the person's account at only two types of entry points, namely on EFTPOS or ATM machines. The Commission argued that this functionality was substantively different in kind to the broader range offered by the new card. It argued that because the new card could access different payment systems and be used by mail, over the telephone or on the internet, the risk of its unauthorised use was greater than that for a Handycard. It contended that these features amounted to a difference in kind.


case_text: the predecessor versions of s 12DL had significantly different wording and operated differently. Secondly, because s 12DL in its present form is different to the previous versions, the relevant task of statutory construction is to construe the section as it now is. The previous wordings were in respect of differently expressed provisions, including the repealed offence created in the former version of s 12DL(1): cf McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55 ; (2005) 221 CLR 646 at 661 [40] per McHugh, Gummow and Heydon JJ, Gleeson CJ agreeing at 650 [1]. Thirdly, I am of opinion that the language of the present s 12DL is clear and the earlier versions do not elucidate its meaning. Fourthly, the earlier version of s 12DL(1) expressly referred to two separate types of debit card including one being "a debit card of the same kind" which may have had a relationship to the expression "card of the same kind" as then used in s 12DL(2). In addition, there was also a definition of "debit card". The absence in the present s 12DL of the expression "a debit card of that kind" demonstrates the irrelevance of the earlier legislation to the construction of the Act in its present form. The Commission also relied on complaint logs to argue that the new card was not regarded by Westpac's customers as a card of the same kind as their Handycard. A total of 740 complaints was recorded although it is not clear whether one complainant could have had more than one complaint recorded. In any event, the total number of complaints is inconsequential having regard to the fact that over 420,000 new cards were issued, the last over six months ago. Next the Commission relied on what it asserted were differences in reported fraudulent use of all Westpac debit cards in relation to the category "card not present" in the 12 quarters to September 2009. The Commission did not put forward any analysis to make good its assertion that this material was probative of the new card not being a card of the same kind as the Handycard. As a percentage of the total amount spent on the cards, the incidence of this fraudulent use varied quarter by quarter within a range, while the overall spending has been significantly increasing. The first three quarters in 2008 and 2009 show broadly similar percentages although they are all slightly less for 2009. In contrast the incidence of fraudulent use of a PIN is very much smaller.


case_text: three purposes specified at the commencement of para (b) in s 12DL(2) must each be given a distinct meaning and operation. This is because the Court must strive to give meaning to every word of the provision and construe it, if possible, so as to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ. A renewal of a card ordinarily will occur close to the expiry date of the credit or debit card. By renewing the card, the issuer creates a new expiry date for the card. A replacement card ordinarily would be one sent to take the place of a card that had been lost by or stolen from the cardholder. A card in substitution for an existing card is different, again, from a renewed or replacement card. A substitute is not normally an exact replica. Often a substitute will have different characteristics, even though it will be able to take the place of the original. The Oxford English Dictionary defines "substitution" as including "the putting of one ... thing in place of another" and "replacement (of one thing) by another". Suppose that on renewal, a renewed debit card has a significant new security feature offering the cardholder extra protection that the expired debit card did not have. Or suppose that because of improvements in technology a completely new payment system allowed the renewed card to be used in many more locations, but with the same security features as the expiring card. If the Commission's contentions were correct, the presence of the new security feature or the functionality with the new payment system would mean that the card was not "of the same kind" as the expiring card. I reject that argument.


case_title: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177


case_text: important contextual feature that must be considered in construing s 12DL is its imposition of strict criminal liability for a contravention of each of s 12DL(1) or (4). This feature cautions against (but does not always exclude) the adoption of an expansive construction of narrower, but clear words. However, as Gleeson CJ, Gummow, Hayne and Heydon JJ said in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 224 CLR 193 at 210-211 [45] : "... in choosing between a relatively broad and a relatively narrow construction of legislation, it is desirable to take into account its penal character. The present litigation does not arise from the institution of criminal proceedings under the offence provisions now contained particularly in s 132 of the Act. However, a person who makes or sells a circumvention device (s 132(5B)) is liable to imprisonment for not more than five years (s 132(6A)). An appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit "practical", construction of Div 2A itself." (emphasis added) The initial prohibition in s 12DL(1) applies to an issuer of a card (by dint of s 12DL(3)) sending one or other of the two cards defined in s 12DL(5), unless the person sends the card in accordance with s 12DL(2). When the chapeau to s 12DL(2) refers to "the card", it identifies the particular card sent to which s 12DL(1) applies. That is, "the card" in the chapeau to s 12DL(2) is either one or other of a credit card or a debit card as defined in s 12DL(5). A significant feature of s 12DL(2)(b)(ii) is that the card sent may be in renewal, or replacement of, or in substitution for, "a card of the same kind" that has two other characteristics; first, that "a card of the same kind" had been sent previously to the person concerned and, secondly, it (the last mentioned card) had been used for "a purpose for which it was intended to be used". Additionally, the construction of s 12DL(2) favoured by the Commission would broaden the scope of the strict liability offence created by s 12DL(1) in a manner that strains the natural and ordinary meaning of "a card of the same kind" as referring to one or other of the two cards referred to in s 12DL(1). This invites a more cautious approach to the looser construction of this criminal provision than the Commission's contention: Stevens 224 CLR at 210-211 [45]; Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; and see too R v Adams [1935] HCA 62 ; (1935) 53 CLR 563 at 567-568 where Rich, Dixon, Evatt and McTiernan JJ said: "No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category ." (emphasis added)


case_text: As Beadle, Hales and Riddell indicate, the wording of the section is broad and does not, financial hardship alone aside, impose a fetter on the matters which may be considered by the decision maker. See also Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 at 73, and Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 at [33]).


case_text: As Tamberlin J also observed in Australian Postal Commission v Wallace (1996) 41 ALD 455 , at 457: It is clear that s 43 is not to be construed with a pedantic eye but in a practical common sense way in order to determine, in substance, whether the decision conveys sufficient of the decision making process to enable the parties and other interested persons to properly understand it. Where the reasons expose the logical process underlying the decision and contain findings on matters of fact essential to that reasoning process, then as Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691: ... it will not be easy to demonstrate a failure of compliance with the requirements to include "findings on material questions of fact". 76 The appellant in this case argues that the Tribunal's reasons are deficient in several respects. First, the appellant argues that the statutory provision here under consideration requires the exercise of a discretion, as discussed by French J above. Accordingly, the appellant argues, this is not a case where the Tribunal can simply state a finding of fact and then move to a conclusion. It was further submitted that, in the Tribunal's reasons there is not to be found a statement of the evidence upon which the facts found were based; the materials before the Tribunal were listed, but were not discussed; the statements of principle are sometimes contradictory to the result reached; and in many instances, the facts found did not, on their face, answer the question posed by the statute. 77 The respondent argues that the Tribunal's conclusions incorporated its reasoning. By stating that the applicant's circumstances were not so special as to justify waiver, and by indicating that those circumstances were not "outside the ordinary run of cases", the Tribunal fulfilled its obligation. It was not required, argue the respondents, to go further. In direct contrast to the applicant, the respondent submits that this case is within that category of cases described by French J in paragraph [40] of his Honour's judgment set out above in which it is sufficient to state the rule or principle, the facts, the evidence upon which the facts are based, and the result.


case_text: On my reading of the judgment of Mansfield J in Devriadis v Secretary, Department of Family and Community Services (2000) 62 ALD 145 , his Honour assumed that an unclaimed entitlement to a benefit was relevant to the consideration of special circumstances. However, it was unnecessary for his Honour to decide the point, because of a factual finding that the appellant could not in fact have been entitled to the benefit claimed. Mansfield J, at 159-160, said: I have also considered whether the tribunal may have erred in failing to consider as a possible special circumstance that the applicant may have been entitled to some level of benefit under the 1947 Act or the 1991 Act during the relevant period, even if he had made full disclosure to the respondent. I do not consider that it erred in law in that regard. The tribunal has determined that the applicant should not be treated as unemployed under s 116(4) of the 1947 Act, or under s 516(1) or 595(1) of the 1991 Act. Those provisions are directed to enabling a period of employment as being treated as a period of unemployment, having regard to the nature of the work, its duration, and other matters relating to the work. The tribunal decided that the work the applicant did for Zorba during the relevant period was such that it should make an order under any of those provisions. Consequently, the criterion of being unemployed upon which eligibility for benefits depended has been found by the tribunal not to exist. The tribunal is not shown to have erred in its understanding of the expression "special circumstances": see the discussion as to the meaning of that term in Condren v Department of Family and Community Services [2000] FCA 268 , BC20000890 per Lehane J at [11]; Kertland v Department of Family and Community Services [1999] FCA 1596 ; (1999) 57 ALD 600 per Merkel J at [30-45]; Beadle v Director-General of Social Security (1985) 7 ALD 670 ; 60 ALR 225 at 228-30. 52 The point made by the Tribunal in the last sentence of the paragraph quoted in [37] above is an important one, and draws attention back to the language of the section in question; that is, that "special circumstances" must be shown. 53 That phrase, as has been noted in a number of decisions of this Court, is broad. 54 French J (as he then was) in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 ( Hales ) noted, at 161: Beadle v Director-General of Social Security (1985) 60 ALR 225 [Beadle] is a decision of the Full Court of the Federal Court on appeal from Toohey J sitting as a presidential member of the Tribunal: see Re Beadle and Director-General of Social Security (1984) 6 ALD 1. The case concerned a claim for family allowance lodged more than six months after the eligibility date. In such a case payment could be backdated only in "special circumstances" (s 102 of the Social Security Act 1947 (Cth)). Even within the narrow confine of "special circumstances" which would support a discretion to overlook the delay, the Court said it "[did] not think it is possible to lay down precise limits or precise rules". The phrase, although lacking precision, was in the Court's view, "sufficiently understood ... not to require judicial gloss": Beadle v Director-General of Social Security at 228. His Honour continued at 162: The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion. ... The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose. (Emphasis added).


case_title: Re Dobbie and Secretary, Department of Social Security AATA, No 8661 (23 April 1993) unreported

case_text: In Varhegyi , the applicant was overpaid an Austudy payment after he failed to inform the Department that he was no longer a full-time student. After Centrelink sought to recover the debt, the applicant argued that the debt should be waived on the basis that special circumstances existed. Again, it was argued that a notional entitlement should be considered. Deputy President Forgie said, at [35]-[37]: 35. Ms Riley raised the concept of "notional entitlement" as one that is relevant and that has found favour in a number of Tribunal decisions in the context of waiving a debt. In Re Huynh and Secretary, Department of Social Security [(1994) 34 ALD 694] the tribunal accepted that: "... where there exists a notional entitlement to another payment under the Act, an applicant is entitled to have this entitlement taken into consideration when the question of waiver is being considered. However, the tribunal is further of the view that in determining whether a nominal entitlement should be offset against an overpayment, the facts which led to the overpayment are important. That is, if the overpayment was fraudulently obtained, this would weigh heavily against the fact there did exist a nominal entitlement to moneys." [(1994) 34 ALD 694 at 713] In Re Dobbie and Secretary, Department of Social Security [AATA, No 8661, 23 April 1993, unreported] the tribunal found that the applicant had a "notional entitlement" to age pension, and waived 50% of the overpayment of widow's pension: "... the applicant had an entitlement to a rate of age pension during the relevant period having regard to the "married" income tests. In other words, if the true state of affairs had been disclosed the applicant would have been paid age pension during the relevant period in excess of $20,000. As the applicant had an entitlement to a rate of age pension that fact should not be ignored despite the fact that she had received public money to which she was not entitled ... On the other hand, good administration of the social security system relies in large measure on the honesty of claimants in their dealings with the department. It follows in our opinion that an applicant who, notwithstanding a notional entitlement to a pension, misrepresents her position faces the prospect of having to accept the consequences of her actions."[AATA, No 8661, 23 April 1993, unreported] 36. After these decisions were made, the waiver provisions of the Act were amended with effect from 1 January 1996, introducing specific waiver provisions where there is a notional entitlement to parenting allowance or family allowance.[ Social Security Act 1991 (Cth), s 1237AAC] Eligibility for these allowances is not dependent on a person's satisfying an activity test in order to be eligible for the payment as is the case for Austudy or newstart Allowance.[ Re Secretary, Department of Family and Community Services and Radmilovich [2002] AATA 779 ; (2002) 70 ALD 218 at 232; [2002] AATA 779] The effect of these amendments on "notional entitlement" was recently addressed by Deputy President Jarvis in Re Schulze and Secretary, Department of Family and Community Services ... 37. I agree with Deputy President Jarvis. There is no room to introduce a concept of notional entitlement in that of special circumstances in s. 1237AAD(1) of the Act.


case_outcome: considered

case_text: For completeness, reference was made to Re DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981 , where Senior Member Handley commented, at [43]: 43. From my part, whilst I would not exclude the possibility of the circumstances of a person being so special that set off by notional entitlement could never be permitted, I would think that those circumstances would be unusual and set off by notional entitlement would be a relatively uncommon occurrence.


case_outcome: approved

case_title: Re Huynh and Secretary, Department of Social Security (1994) 34 ALD 694


case_text: The appellant referred to decisions in which the Tribunal had considered notional entitlement relevant. Principal among these was the decision, subsequent to Schulze and Varhegyi , in Re Sara and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 708 ; (2006) 91 ALD 759. In that case, Member Carstairs said, at [30]: Ms Dole submitted, referring to the tribunal decisions in Re Schulze and Secretary Department of Family and Community Services (2004) 81 ALD 636 ; [2004] AATA 705 and Re Secretary Department of Family and Community Services and Varhegyi (2005) 87 ALD 717 ; [2005] AATA 635 that it would be an incorrect approach to the discretion under s 1237AAD of the Act to incorporate a consideration of any notional entitlement to another payment in its exercise. I agree with the reasons expressed in those decisions that there is specific reference in other sections of the Act to particular payments (not including youth allowance) where notional entitlement is recognised. However, I do not understand either deputy president in these decisions to be stating that there are no circumstances in which notional entitlement can be considered in the context of the discretion for special circumstances. There are, after all, no fetters on this discretion, except as expressed in s1237AAD itself.