case_title: Associated Provincial Picture Houses Ltd v Wednesbury Corporations [1947] EWCA Civ 1 ; [1948] 1 KB 223

case_text: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 627 [44] per Gleeson CJ and McHugh J, 656-657 [144]-[147] per Gummow J, 672-673 [194] per Callinan J, the distinction between a decision which the court finds no reasonable decision-maker could have come to and one which the court considers simply to be unreasonable, was discussed. The latter characterization involves a broad spectrum at the extreme end of which may be found decisions of the former category in the sense of unreasonableness of the kind recognized in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 230. The existence of that spectrum reminds the courts that between its extreme ends are many categories of decision with which courts might not agree or which they could regard as unreasonable but which a reasonable person could have made. The latter category of decision is immunized from judicial review because the legislature has confided to the decision-maker the task of forming the opinion or arriving at the state of satisfaction on the materials before him or her.


case_outcome: cited

case_text: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 42 Mason J noted that the Court should proceed with caution in cases where it was suggested that a decision-maker had erred by giving too much or too little weight to particular considerations '... lest it exceed its supervisory role by reviewing the decision on its merits'. He said that a close analogy existed between the judicial review of administrative action and appellate review of a judicial discretion. He pointed to the fact that in cases of the latter kind appellate courts could review discretionary judgments that had failed to give proper weight to a particular matter, but were slow to do so because the mere preference for a different result was not sufficient to disturb the exercise of the discretion by the judge at first instance (162 CLR at 42).


case_outcome: applied

case_text: a court exercising its power to review an administrative decision concludes that, in accordance with the above principles, the decision is 'unreasonable' its conclusion must be a finding that in truth the power conferred by the statute has not been exercised and so a jurisdictional error has occurred. This a feature of the rule of law which forms a fundamental assumption upon which the Constitution is based: Australian Communist Party v The Commonwealth [1951] HCA 5 ; (1951) 83 CLR 1 at 193 per Dixon J; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 513-514 [103] - [104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The recognition by the Parliament, in statutory provisions like ss 368 and 430 of the Migration Act 1958 (Cth), that administrative decision-makers should give reasons for their decision and set out their findings, is a reminder to administrative decision-makers of an important aspect of the rule of law: namely, that they must provide the justification, in the reasons required by the statute to be given, for the exercise of the power with which they have been entrusted. And, the requirement to provide reasons is a means of ensuring that courts, when exercising the power of judicial review, are not obliged to approach their consideration of the exercise of the discretion in the same speculative way as in a case like Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360.


case_text: in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360, Dixon J said, in a case where the Commissioner was not required to give reasons, that: 'The conclusion that he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.' When a court exercising its power to review an administrative decision concludes that, in accordance with the above principles, the decision is 'unreasonable' its conclusion must be a finding that in truth the power conferred by the statute has not been exercised and so a jurisdictional error has occurred. This a feature of the rule of law which forms a fundamental assumption upon which the Constitution is based: Australian Communist Party v The Commonwealth [1951] HCA 5 ; (1951) 83 CLR 1 at 193 per Dixon J; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 513-514 [103] - [104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The recognition by the Parliament, in statutory provisions like ss 368 and 430 of the Migration Act 1958 (Cth), that administrative decision-makers should give reasons for their decision and set out their findings, is a reminder to administrative decision-makers of an important aspect of the rule of law: namely, that they must provide the justification, in the reasons required by the statute to be given, for the exercise of the power with which they have been entrusted. And, the requirement to provide reasons is a means of ensuring that courts, when exercising the power of judicial review, are not obliged to approach their consideration of the exercise of the discretion in the same speculative way as in a case like Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360.


case_text: I had begun delivering lengthy ex tempore reasons at the conclusion of the hearing, I formed the opinion that I was not able to decide the appeal without further assistance. Accordingly, I reserved my decision. I withdraw any oral reasons. As I have noted above, I was then of the view that the Tribunal had made two jurisdictional errors, one in respect of cl 845.216, the other in respect of the appellant's English language. In that context I directed the parties to make any further submissions about whether the grant of relief would be futile because, even if the language issue were revisited the appellant had no realistic prospect of obtaining the 20 extra points he needed: cf: Kumaraperu v Minister for Immigration (1998) 88 FCR 381 at 396G per Weinberg J and Peng v Minister for Immigration [2000] FCA 1672 ; (2000) 105 FCR 63 at 67 [14] per Hely J.


case_outcome: considered

case_text: the particular document containing the policy was not part of the appeal papers or before the trial judge, during the course of argument before me, two documents were produced. One was headed 'About Visa 485' and I was informed by counsel for the Minister that its provisions applied as the policy at the time at which the appellant made his original application for a visa. Unhelpfully, it did not set out criteria for the purposes of assessing whether cl 845.216, should be interpreted in any particular way, but, simply referred to another policy for those criteria. The policy in effect for the period 11 May 2005 to 15 June 2005, being the period in which the Tribunal's decision was given, was also produced. It set out, in par 8.1, criteria, for the purposes of cl 845.216, materially identical to those the subject of consideration by a Full Court of this Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93 at 101-102 [30] . The terms of par 8.1 of the policy were: '8.1 The policy intention of this criterion overall is to establish whether the applicant has the ability to manage and operate a main business successfully. Under policy, it requires [sic] the applicant to demonstrate that . they have exercised responsibility within the main business(es) in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure; . such responsibility has been exercised on a continuous (as opposed to on an occasional basis); and . their skills have been fundamental to, or have exerted direct influence on, the operation of the main business(es). The success (or otherwise) of the business(es) is not a relevant factor in assessing this criterion. Rather, if an applicant satisfies this criterion in respect of a failed or declining business, this should be considered in assessing whether the applicant "has overall had a successful business career".' The Full Court held, following a concession by the Minister, that the requirements of the identically worded policy did not correspond to the requirements of the Regulations. The court said (132 FCR at 112 [63]) that: '... the departmental policy ... was narrower than the criterion for a subclass 845 visa set out in cl 845.216 .... The criterion requires satisfaction on the part of the Minister that the applicant for the visa as owner of and interested in a main business "maintain direct and continuous involvement in the management of that business or in those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses." This did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees, and/or responsibility for expenditure. There is a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance.' (emphasis added) The trial judge adopted the submission of the Minister that the Tribunal's approach to this issue was not a misconstruction of the requirements of a statutory criterion for the granting of a visa by applying a policy which was narrower than the criterion in cl 845.216, in contrast to Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93. Rather, his Honour, in adopting the Minister's submission, found that it was clear from the Tribunal's decision that it had applied the very words of the enactment (in the passages at [30]-[33] to which I have referred) and that the case was no more than a merits review, as opposed to an error going to jurisdiction. I do not agree. The Tribunal's obligation was to conduct a review of the decision of the delegate (s 348(1)). In performing that review it had power to exercise all of the powers and discretions that were conferred by the Act on the person who made the decision (s 349). And, having made a decision, the Tribunal was obliged to prepare a written statement under s 368(1) which set out: • the decision of the Tribunal on review; • its reasons for that decision; • the findings on any material questions of fact; and • references to the evidence or any other material on which those findings of fact were based. I am of opinion that the Tribunal did not, in its reasons for decision, set out the evidence or any other material on which the ultimate findings of fact to which it came in relation to cl 845.216 were based. There was nothing in the findings or other material set out in its reasons that enabled it to come to the conclusion that it could not be satisfied on the issue of the appellant's involvement in the business. The Tribunal expressly said that it had considered policy in arriving at its lack of satisfaction that the appellant had met the criteria of cl 845.216. Here, the Tribunal appears to have been misled by its reliance on the unlawful constriction which par 8.1 of the policy sought to put on the proper interpretation of cl 845.216 as held in Lobo v Minister [2003] FCAFC 168 ; (2003) 132 FCR 93. As their Honours held, a want of satisfaction of the criteria set out in the policy would not equate to a want of satisfaction of the criterion in cl 845.216. And an assessment by the Tribunal in which, as it said, it was required to have regard to that policy and apply it unless there were cogent reasons for departing from it, involves jurisdictional error because the Tribunal applied the policy rather than the criteria in cl 845.216 (132 FCR at 112 [63]-[69]. The Tribunal made an error of law in that it did not correctly understand and apply the criteria in cl 845.216. Nor did it give any reasons for its conclusion in that regard. Each was a failure to conduct that part of the review in accordance with law, being a requirement to decide whether or not the appellant met the criteria for cl 845.216. And, this was also a jurisdictional error ( Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR at 112 [64]-[65]). The second argument related to whether or not the appellant met the requirements of Pt 3 of Schedule 7 of the Regulations for the purposes of cl 845.222(1). Under that clause a notice in the Gazette can establish the number of points required for the 'business skills points test' to be satisfied. The notice, for present purposes, required 105 points. It is not in issue that the appellant was entitled to 10 points by reason if his age (being between 50 and 55 years) and was entitled to 60 points because the business with which he was involved, in the 12 months immediately preceding the making of his application, met the criteria specified (in Div 1.4 of Schedule 7 in cl 7170). Accordingly, he had 70 points from those two criteria. He needed another 35 points to satisfy the test in the notice in the Gazette. The Tribunal assessed appellant as being of limited ability in English and gave him 10 points for that item. It then found that it was not satisfied with the estimates of value which the appellant had given for his assets and was not satisfied he had net assets of more than $1.5 million at the hearing, but was satisfied of him having at least $500,000 worth. Accordingly it gave him 5 points for that item. He was thus 20 points short of what he needed to meet the points test.


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_outcome: discussed

case_text: raises a tension between a consideration of the way in which a court must assess the impact of a jurisdictional error that is found and its bearing on the overall decision. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 541-542 [74] Gummow and Hayne JJ said that: '... to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal's conclusions about applicable legal principle and will be directed to the questions that those principles present.' Their Honours went on to say: 'If, in that review, the Tribunal makes an error of law and a subsequent review is ordered, what is the Tribunal then to do if the further findings are to be made about subjects with which the first Tribunal dealt? For it to take, as its starting point, findings that were made on that earlier review under a misapprehension of applicable legal principles, may, indeed often would, skew the second factual inquiry by the Tribunal.' Their Honours then noted that by contrast, if no more findings needed to be made on the second review because only one conclusion was lawfully open to the Tribunal on the findings that it made at the first, the difficulties to which they had referred would be much reduced, if not eliminated. The Tribunal's function here, as the Minister pointed out, involved consideration of the situation at two points of time for certain matters. Under cll 845.21 and 845.221 some criteria, such as those under cl 845.216, had to be satisfied at the times of both the application and the decision. Additionally, under cl 845.22 further criteria had to be satisfied at the time of the decision. Under cl 845.222(2)(b)(ii) the appellant's score on the business skills points test is calculated as the sum of his scores, for present purposes, at the time when the application for the visa was made. Under cl 845.222(2)(c) certain assets only are to be valued or assessed for value in determining whether an applicant meets the points criteria under Pt 4 of Schedule 7 of the Regulations (see items 7401-7404). I am of opinion that when a matter is remitted (under Div 4 Pt 5 of the Act) to the Tribunal for further hearing and determination according to law, similar reasoning applies. The way in which that review is undertaken is similar to the task of the Refugee Review Tribunal in like circumstances see: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 and SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (see esp at [35]-[36]). The fact that the appellant had not satisfied the points test in each criterion in a decision which is set aside would be a matter that the Tribunal could take into account, if it had to complete its review, although it would be able to review the question afresh, as Gummow and Hayne JJ pointed out in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518. Indeed, in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ held that a decision of the Refugee Review Tribunal was affected by jurisdictional error where the tribunal had reached a decision to refuse a visa to an applicant and had said that it had given no weight to a confidential letter. The visa applicant was ignorant of the existence of the letter which contained credible, relevant and significant material which was adverse to the visa applicant. Their Honours said: 'It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.' (222 ALR at 417 [19])


case_text: in Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 67 [36]-[37], McHugh and Gummow JJ, having applied the passage just cited said that the particular circumstances disclosed by the written statement required by s 430 (here s 368) of the Act was important in this regard (see too at 198 ALR at 71 [52], 98 [173] per Callinan J agreeing). In Minister for Immigration v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 20 [38] Gummow and Hayne JJ said that: '...the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 20/2002 (2003) 198 ALR 59 at 67 [37], 71 [52], 98 [173]). If the decision did display these defects, it will be no answer that the determination was reached in good faith ... However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.'


case_text: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] McHugh, Gummow and Hayne JJ referred to s 430 of the Act, a cognate provision of s 368. They said that: 'The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.' (emphasis in original)


case_text: decision-making, of its nature, involves the formation of value judgments as to such matters as credibility, the strength or compellingness of the particular case, the importance of consistency in decision-making and the simple formation of the relevant opinion which the statute prescribes as the occasion for the exercise of the power. Thus, s 65 of the Act requires the Minister, as the decision-maker, to be satisfied of particular matters if she is to grant a visa. Value judgments are ones in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: cp Norbis v Norbis [1986] HCA 17 ; (1986) 161 CLR 513 at 518 per Mason and Deane JJ; 540-541 per Brennan J; see too at 535 per Wilson and Dawson JJ. As Brennan J said, there is no difference in principle between the review of a judicial discretion and the review of an administrative discretion (161 CLR at 540). He pointed out that if a discretionary power were exercised in a way which a reasonable repository of the power might exercise it, that exercise of power is supported by the statute which conferred it, whether the discretion be judicial or administrative in nature. Brennan J went on to point out that appellate courts were more familiar with the usual confines within which judicial discretions might be exercised and were therefore more sensitive to an unreasonable exercise of such a discretion and more confident of their ability to detect error in its exercise. He said: 'It is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience.' (161 CLR at 541)


case_title: Peng v Minister for Immigration [2000] FCA 1672 ; (2000) 105 FCR 63


case_outcome: followed

case_text: a court exercising its power to review an administrative decision concludes that, in accordance with the above principles, the decision is 'unreasonable' its conclusion must be a finding that in truth the power conferred by the statute has not been exercised and so a jurisdictional error has occurred. This a feature of the rule of law which forms a fundamental assumption upon which the Constitution is based: Australian Communist Party v The Commonwealth [1951] HCA 5 ; (1951) 83 CLR 1 at 193 per Dixon J; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 513-514 [103] - [104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The recognition by the Parliament, in statutory provisions like ss 368 and 430 of the Migration Act 1958 (Cth), that administrative decision-makers should give reasons for their decision and set out their findings, is a reminder to administrative decision-makers of an important aspect of the rule of law: namely, that they must provide the justification, in the reasons required by the statute to be given, for the exercise of the power with which they have been entrusted. And, the requirement to provide reasons is a means of ensuring that courts, when exercising the power of judicial review, are not obliged to approach their consideration of the exercise of the discretion in the same speculative way as in a case like Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360. At the very least the Tribunal's conclusion that it was not satisfied that the appellant had met the criteria in cl 845.216 ensured that he could not be granted the visa because s 65(1) so provided. The Tribunal was required to conduct its review according to law. And a failure to do so is a failure to follow the requirements which the Tribunal had to follow in order to come to a decision that could be valid. The Tribunal had an imperative duty to consider the criteria which the Act and Regulations prescribed and to form a view on those criteria for the purposes of conducting its review: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] . It did not do so and committed a jurisdictional error for the reasons I have given.


case_title: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Ltd [1953] HCA 22 ; (1953) 88 CLR 100

case_text: inadequacy of the material relied on by an administrative decision-maker while, not itself, being a ground for prohibition is a circumstance which may support, in a case like the present, the inference that the Tribunal was applying the wrong test or was not in reality satisfied of the requisite matters. As Dixon CJ, Williams, Webb and Fullagar JJ held in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120: 'If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.'


case_text: Minister relied on remarks of McHugh J in Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 (and in particular I apprehend at 412-413 [35]-[36] and 416-418 [60]-[70]) that in effect the Tribunal in stating its reasons for decision was entitled to make findings of fact and was not required to go through line by line each item of evidence, or each relevant matter and deal with it in turn, accepting or dismissing it. So much may be accepted. The Minister also argued that the decision required under s 65 of the Migration Act 1958 (Cth) ('the Act') was whether or not the Tribunal, standing in the shoes of the Minister as the decision-maker, was satisfied of the matters set out in the Regulations for the purposes of granting the visa for which the appellant applied. She contended that findings along the way were not ones which went to jurisdiction. I am of opinion that it was not open to the Tribunal, on the basis only of the findings it set out, to find that a person in a single business that consists of running one retail trading shop who makes decisions daily about placing orders and pricing of goods offered for sale, and had done so for over one year prior to his application without any suggestion of supervision or control, did not have direct and continuous involvement in the management of that business from day to day or in making decisions that affect the overall direction and performance of that business. The Tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling. As McHugh J pointed out, in Minister for Immigration and Multicultural Affairs v Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at 417 [70] the requirements of s 368 are that the Tribunal give a written but not lengthy explanation of the decision already made. I am of opinion that there was an absence of any reason, factual finding or reference to facts expressed in the Tribunal's reasons that could show that a person who had the duties and performed the functions of the appellant in the business during the period which the Tribunal was considering, namely the year prior to his visa application being lodged, did not satisfy the criteria of cl 845.216. Having regard to the Tribunal's expressed findings and reasons, its decision on this issue was so unreasonable that no reasonable decision-maker could have come to it on the basis expressed in those findings and reasons. That is not to say that another tribunal could not come to the same decision, but if it did so it would have to apply the law correctly, make findings and give reasons which were capable of supporting the decision. I can see no error of approach in the way that the Tribunal dealt with this matter. It was entitled to form a view as to whether or not what had been put to it by the appellant satisfied it as to the value of his assets. This was, as McHugh J said in the Minister for Immigration and Multicultural Affairs v Durairajasingham ((2000) 74 ALJR at 417 [67]) a finding on, inter alia, credibility or establishment of facts which was the function of a primary decision-maker par excellence. I do not consider that the Tribunal has been shown to have erred or not performed its function of review of the application in this respect. The question arises of how the matter ought then be resolved. The Minister has raised an issue of some difficulty. She says that the Tribunal may have erred in the way in which I have found, but that nonetheless even if one accepts that result, the application would be rejected on reconsideration by the Tribunal. That is because, even if the Tribunal formed a more favourable view on, first, the issue under cl 845.216 and then, secondly, on the language issue and awarded the appellant 10 more points, he would still be 10 points short of the 105 required to satisfy the points.


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59


case_text: a decision-maker does not give any reason for his or her decision, the court may be able to infer that he or she had no good reason ( Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ).


case_text: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 183-184 [80] , 211-212 [210]-[211] McHugh and Hayne JJ respectively considered whether and to what extent the court could withhold relief in cases where the jurisdictional error had been established. The decision to issue to constitutional writs or a writ of certiorari is, of course, discretionary. McHugh J pointed out, as the Minister put in her submissions, that discretionary relief may be refused if an applicant has in fact suffered no injustice because, for example, the statutory regime compelled a particular outcome (215 ALR at 184 [80]). I am of opinion that there was some relationship between the Tribunal's findings about the appellant's degree of involvement in the business and his language skills. In particular the Tribunal referred to the difficulties he had in the interview with the Department, which was conducted without an interpreter, in considering both the issues under cl 845.216 and the language component of the points test. The Tribunal found that the appellant did not demonstrate to it that he understood and spoke English at a level which would have allowed him to understand questions in English, and therefore accepted that he had difficulties in understanding questions asked of him at the Departmental interview . As the trial judge observed '... the issue was not dealt with as clearly as one might like' in the reasons of the Tribunal even though there was no jurisdictional error established on this point. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 212 [211] Hayne J, with whom Kirby J agreed, referred with approval to what Gaudron J had said in Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 157 [56] that: '... the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.' The Minister does not rely on any delay, waiver or acquiescence or other conduct disentitling the appellant to relief. The sole question is whether the finding by the Tribunal that the appellant had not satisfied it as to the points test is such as mandates that any reconsideration by the Tribunal must result in the same ultimate decision to affirm the decision not to grant the visa. I am of opinion that the Tribunal's findings on the points test issues are part of the merits which it can revisit or not as it sees appropriate, if it is ordered to conduct the review according to law. It would be for the Tribunal to make its own decision as to whether or not it was satisfied as to any such matters on a review, albeit that it may well feel that it does not wish to revisit the matter. Alternatively, it may feel that, having regard to the jurisdictional error that has been found, it ought to do so. The Court cannot compel the Tribunal to adhere in the future to any particular state of satisfaction which it expressed previously in its reasons. I am not satisfied that the appellant has suffered no injustice ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR at 184 [80], 203 [170], 212 [211]) having regard to the jurisdictional error I have found and to the fact that on reconsideration he may be able to satisfy the Tribunal conducting the review in accordance with law of the matters which it had previously not been satisfied about under the points test. I am not confident that the jurisdictional error I have found could have had no bearing on the outcome and thus I should not refuse relief: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145, 147.


case_text: am not satisfied that the appellant has suffered no injustice ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR at 184 [80], 203 [170], 212 [211]) having regard to the jurisdictional error I have found and to the fact that on reconsideration he may be able to satisfy the Tribunal conducting the review in accordance with law of the matters which it had previously not been satisfied about under the points test. I am not confident that the jurisdictional error I have found could have had no bearing on the outcome and thus I should not refuse relief: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145, 147.


case_text: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 265 [231] - [233] Allsop J, (with whom Weinberg J agreed on this point at 150 FCR 252 [155]) considered the consequences of failure to comply with the operation of s 424A of the Act. He held that if it could be shown that there was a basis for the Tribunal's decision which could be seen to be entirely independent of a failure to follow the requirements of procedural fairness mandated by s 424A , then by analogy with the reasons of Gaudron and Gummow JJ in Re Refugee Review Tribunal Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 108-110 [57] - [62] and, in particular at 109 [58], the court could withhold constitutional or prerogative writ relief in the exercise of its discretion.


case_text: question of how the review, if one is ordered, is to be further conducted, would be a matter for a member constituting the Tribunal for the purposes of that review. In a similar context, a Full Court of this court recently considered, when a matter was remitted by the court, what the Refugee Review Tribunal was required to do when further conducting the review, and whether it was obliged to start afresh or was entitled to take account of what had already been looked at by the Tribunal, differently constituted on the earlier occasion, whose decision had been set aside by a consent order made by the court: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107. I am of opinion that when a matter is remitted (under Div 4 Pt 5 of the Act) to the Tribunal for further hearing and determination according to law, similar reasoning applies. The way in which that review is undertaken is similar to the task of the Refugee Review Tribunal in like circumstances see: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 and SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (see esp at [35]-[36]).


case_title: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 ; [2006] 231 ALR 663

case_text: One of the claims in the first category is that the Federal Magistrate who heard the case did so in a way which demonstrated actual bias or reasonably apprehended bias. In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 ; (2006) 231 ALR 663, the High Court of Australia dealt with a claim, which had been upheld by the Full Federal Court of Australia, that a judge of that court had conducted himself in a way which would give rise to a reasonable apprehension of bias. In the course of giving their judgment in the appeal, Crennan and Kirby JJ, with whom Gummow ACJ agreed on the point, stated at [117]: "An intermediate appellant court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first". Accordingly, I must deal first with the bias claims made on behalf of the appellant. I note, however, that it is the second group of claims which address the question of whether the decision of the Refugee Review Tribunal is tainted with appealable error. Were I to uphold the claim of bias (see Concrete at [117]), it would seem that the proper course would be for me to send the matter back for reconsideration by the Federal Magistrates Court rather than to deal with the substantive issue relating to the validity of the decision of the Refugee Review Tribunal. 9 I propose to say at the outset that I think that the claim of bias, whether actual or apprehended, is entirely without foundation. I have read large parts of the transcript which has been put before me and I have, in particular, read all the parts of the transcript that were specifically referred to by the appellant's solicitor and to the parts of the transcript that are reproduced in the appellant's written submissions. I had played to me a substantial section of the recording of the hearing and had the opportunity to listen to that while I read through the recorded parts as they appeared in the written transcript. My first impression of my reading of the transcript and of listening to the recording of the hearing was that the proceeding took place in a way which is entirely normal and acceptable and in a way which occurs in courts in Australia every day of the week. 10 I particularly thought that in the way she addressed the appellant's solicitor, the learned Federal Magistrate proceeded with moderation. I did not notice her at any stage to raise her voice in any way that was untoward. The appellant has urged upon me that from time to time she interrupted. All I can say about that is that if interruptions by judges of counsel can give rise to a claim of apprehended bias, then there would be very many such claims that could be made. I noticed, although the appellant's solicitor did not refer to it, that there were occasions when he interrupted the Federal Magistrate.


case_text: I accept that such orders should be made only in the rarest of circumstances where serious lapses of proper conduct have occurred for such an order to be justified. Like Mansfield J in Kumar v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCA 18 , I am conscious of the fact (and think it is quite a significant matter) that the moment a personal costs order is made against a lawyer, a problem of conflict immediately arises between the lawyer and his client. Such conflicts do not assist the administration of justice. It therefore seems to me that it is not generally appropriate, except in a serious case and even then only when an application is made by a party, that consideration should be given to the imposing of a personal costs order. I am not, of course, saying that it is not open to the court to impose a personal costs order of its own motion. However, the Federal Magistrate did not proceed in this case to impose any personal costs order and so no consequence arises in that regard. It seems to me, having read carefully the material and having listened to the recording, that in the way in which the Federal Magistrate dealt with the matter, even if she might have desisted from raising the matter unless an application had been made, her conduct fell a very long way short of anything that could amount to actual or apprehended bias. 13 The appellant did raise some other matters specifically on the issue of bias. I have given consideration to all of those matters and again I think that they have no substance. One particular matter was the fact that, apparently, the Federal Magistrate had read the first of the decisions of the Refugee Review Tribunal, rather than the second decision of the Refugee Review Tribunal, prior to the hearing and understood that that first decision was the decision under review. I have read the parts of the transcript relating to that matter and it seems to me that, again, it does not give rise to any claim of bias.


case_text: Submissions were put to me as to the precise test which applies in a case of bias. The appellant contended for a passage in the decision of the High Court of Australia in Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; [2001] 179 ALR 425 at page 434 as the appropriate test. That test is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided". The conclusions I have arrived at apply if that is the correct test. However, whatever the correct test is, I still arrive at the same conclusions. 15 Another issue raised before me was whether the question of bias could be raised in this appeal, it having not been raised before the Federal Magistrate. In the light of my decision on the substance of the matter, I do not need to deal with this question. 16 The actual issues relating to bias are framed in grounds in the amended notice of appeal which are reproduced in the appellant's written submissions. Lest it should be thought by my summary approach to the issues that I have not considered the detail of those matters, I will now refer to the particular grounds, which are as follows: 1. The decision of the Federal Magistrate should be set aside as there was a reasonable apprehension of bias on the part of the Federal Magistrate in the way her Honour conducted the hearing. 2. The decision of the Federal Magistrate should be set aside as her Honour was biased against the Applicant's solicitor advocate. 17 The bias claims formed part only of grounds associated with the conduct of the hearing. There were two further grounds related to procedural fairness. They were as follows: 3. The decision of the Federal Magistrate should be set aside as her Honour denied procedural fairness to the Applicant's solicitor advocate. 4. The decision of the Federal Magistrate should be set aside as there was a reasonable apprehension of serious negligence on the part of the Federal Magistrate in the way her Honour failed to prepare herself to conduct the hearing that might have caused a reasonable lay observer to conclude that the solicitor advocate's client that is the Appellant (a) might not get justice and/or (b) might not have his case properly dealt with by the Magistrate. Further, this also caused apprehension on the part of the Appellant's solicitor advocate that her Honour was not familiar with the case and thus did not fully grasp the issues and therefore the Appellant's case was not properly inquired into. 18 Although ground 4 is described in terms of serious negligence, when he was putting submissions to me, the appellant's solicitor said that this ground should be really understood as a further ground of denial of procedural fairness. For much the same reason as I have found that there is no basis for a claim of bias, it seems to me that both of these grounds should fail. 19 Ground 4 particularly raises the issue of the Federal Magistrate having read the wrong decision of the Refugee Review Tribunal. I note, however, that her Honour specifically said to the parties that they should proceed on this basis, by which she must have been understood to have been saying that they should address her on the basis that at the time of the hearing she was not familiar with the terms of the reasons of the Refugee Review Tribunal. I also note that her Honour reserved her decision so that she had ample opportunity to read the reasons before giving judgment. 20 It is not, to my mind, any basis for a breach of procedural fairness to say that a judge has not read or fully understood the case to be put prior to coming on the bench. Indeed, my career at the bar extends back far enough to remember a time when that was usually the moment when judicial officers first learnt about a case that was before them. 21 It follows from the above that the four grounds relating to the conduct of the trial must fail. 22 I turn now to four grounds relating to the decision of the Refugee Review Tribunal. As my introductory remarks foreshadowed, it seems to me that this is a case in which, although the applicant had the opportunity to put a case on the facts a number of times to different bodies, namely the departmental delegate and to two differently constituted Refugee Review Tribunals, the reality is that he failed on these occasions to make out his case. I frankly think that the present grounds of appeal are really an attempt to cavil with the decisions of the Refugee Review Tribunal on the facts. If that is the case, then it is not surprising if they are unsuccessful. Nevertheless, I will address the particular claims that are made.


case_text: The crux of the argument put on behalf of the appellant is that before the second step was taken there should have been a positive determination on the first question as to whether there was detention or not. I do not agree that that is a necessary prerequisite to a consideration of relocation. In many cases it may be desirable for decision-makers to address the first question to conclusion, but I do not think that failure to do so gives rise to any relevantly appealable error. In coming to this conclusion I appear to be supported by the decision of this Court in Syan v Refugee Review Tribunal (1995) 61 FCR 284 and particularly some observations made by Beazley J at 288 and 290-291. It follows that the fifth ground of appeal cannot succeed. 30 The sixth ground of appeal is associated with the seventh and eighth grounds of appeal and I will set them out together: 6. The learned Federal Magistrate erred by failing to find that the Tribunal made jurisdictional error as it failed to ask two important questions in making a finding critical to its ultimate lack of satisfaction. 7. The learned Federal Magistrate erred by failing to find that in making a finding that the Tribunal may not accept that he would be even interested in legitimately expressing his political opinion in a manner that would bring him to the adverse attention of anyone should he return to India the Tribunal failed to ask an important question and thus made a jurisdictional error. 8. The learned Federal Magistrate erred by failing to find that in making the finding "I may not accept his alleged convictions were sufficiently strong such that their disregard may constitute persecution for him" the Tribunal made jurisdictional error as it: (a) failed to take relevant matters into consideration and; (b) took irrelevant matters into consideration. 31 So far as grounds 6 and 7 are concerned, they really depend upon an argument that the Tribunal did not address sufficiently what might be the process of reasoning flowing from findings relating to detention for two or three days and findings relating to the comparative level of political motivation of the appellant and his family. I must say I think these are classic examples of attempting to revisit the facts.


case_outcome: affirmed

case_text: The Administrative Appeals Tribunal constituted by the Hon R J Groom, Deputy President, varied a decision of the Secretary refusing an order under s 1184K(1). The Tribunal directed that $60,000 of Mr Barrington's compensation payment be treated as not having been made: Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050. 5 On appeal to this Court the Secretary accepts that the decision of the Tribunal was open on the evidence. However, he submits that in its process the Tribunal made two errors of law: • It failed to deal with a submission seriously advanced by the Secretary which was worthy of consideration, namely the fact that Mr Barrington's purchase of a house after he had received notice of the lump sum preclusion period told against the recognition of special circumstances; and • It denied the Secretary natural justice by basing its finding of "special circumstances" on the payment of $47,500 legal costs out of the settlement payment of $285,000: 1. without giving the Secretary any notice that it might treat the costs payment as relevant; 2. having discouraged the Secretary from making submissions on that issue; and 3. thereby denying the Secretary the opportunity to make submissions on that issue. 6 Mr Barrington was injured at work in 1999 and received weekly compensation until 12 September 2002. On that day he settled an action for damages for $285,000 inclusive of legal costs. He received the net amount of $237,500 after deduction of legal costs. Mr Barrington said in evidence that he actually paid $55,000 in legal fees. The Tribunal thought it possible that he was required to pay a further $7,500 out of the net amount, but was satisfied he paid at least $47,500.


case_text: On the present appeal Senior Counsel for the Secretary relied on a line of authority commencing with Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267. At the time of that decision s 43(2) was in substantially the same terms as the present subs (2B). Jenkinson J, with whom Woodward and Foster JJ agreed, said at 276-277 "There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this Court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettit v Dunkley [1971] 1 NSWLR 376. 33 However, on the assumption that Dennis Wilcox is still good law, the principle for which that case stands is not applicable here. Mr Barrington's being aware of the preclusion period before he purchased the Burnie house was not in dispute. It was not a discrete legal or factual issue standing apart from the rest of the case as discussed in the Tribunal's reasons. It was a part of the larger narrative which also included Mr Barrington's plans and expectations when he bought the house, and how illness and lack of employment opportunities thwarted them. The omission by the Tribunal of any reference to a particular element of that narrative does not of itself lead to the conclusion that such element was ignored or overlooked: cf Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20 ; (1979) 140 CLR 675 at 680, 684. If a fact is not in itself disputed, that may be a reason why it is not mentioned. The bare fact of spending compensation money on an asset after becoming aware of a preclusion period would often tell against a finding of special circumstances, as the Guide points out. But in the present case what really opened up the possibility of a special circumstances finding is what happened after the purchase, including Mr Barrington's health and employment problems.


case_text: This approach has been adopted in later cases: Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 460-461 and Repatriation Commission v Smith (1997) 75 FCR 298 at 306. However, it may be doubted whether this line of authority is consistent with the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323.


case_title: Repatriation Commission v Smith (1997) 75 FCR 298 at 306


case_text: This approach has been adopted in later cases: Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451 at 460-461 and Repatriation Commission v Smith (1997) 75 FCR 298 at 306. However, it may be doubted whether this line of authority is consistent with the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. 29 In Yusuf the High Court was concerned with s 430(1) of the Migration Act 1958 (Cth) which requires the Refugee Review Tribunal (RRT), when it makes a decision on review, to prepare a written statement that : "(a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." The obligation imposed on the RRT is substantially the same as that under s 43(2) of the Administrative Appeals Tribunal Act . 30 As part of her claim for a protection visa the respondent in Yusuf had alleged that her husband had been attacked in the family home in Somalia and driven away by members of a rival clan. The RRT affirmed the refusal of a protection visa without expressing any finding about the alleged attack on the husband. The High Court reversed the Federal Court's decision that the RRT had failed to comply with s 430(1). 31 The High Court held that s 430(1)(c) only required the RRT to set out the findings which it did make and which it considered material to the decision to be made; the section did not oblige the setting out of findings which the Tribunal had not in fact made: per Gleeson CJ at [10], per McHugh, Gummow and Hayne JJ at [68]. A failure to make a finding may reveal another error, such as failure to take account of relevant considerations: [73]-[75], but that is a distinct and different ground. 32 In the present case the argument said to be left unconsidered would not be a relevant consideration in the sense expounded in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39, that is to say a consideration the Tribunal was bound by the Social Security Act to take into account. On the appeal to this Court senior counsel for the Secretary did not so contend. At best, Mr Barrington's purchase of the house after awareness of the preclusion period was a part of the factual matrix of this particular case, the setting in which s 1184K(1) had to be applied. The reasoning in Yusuf rather suggests the Tribunal made no legal error simply by failing to refer to one argument advanced, so long as it otherwise complied with s 43(2B) of the Administrative Appeals Tribunal Act .


case_text: In the present case the argument said to be left unconsidered would not be a relevant consideration in the sense expounded in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39, that is to say a consideration the Tribunal was bound by the Social Security Act to take into account. On the appeal to this Court senior counsel for the Secretary did not so contend. At best, Mr Barrington's purchase of the house after awareness of the preclusion period was a part of the factual matrix of this particular case, the setting in which s 1184K(1) had to be applied. The reasoning in Yusuf rather suggests the Tribunal made no legal error simply by failing to refer to one argument advanced, so long as it otherwise complied with s 43(2B) of the Administrative Appeals Tribunal Act .


case_text: However, on the assumption that Dennis Wilcox is still good law, the principle for which that case stands is not applicable here. Mr Barrington's being aware of the preclusion period before he purchased the Burnie house was not in dispute. It was not a discrete legal or factual issue standing apart from the rest of the case as discussed in the Tribunal's reasons. It was a part of the larger narrative which also included Mr Barrington's plans and expectations when he bought the house, and how illness and lack of employment opportunities thwarted them. The omission by the Tribunal of any reference to a particular element of that narrative does not of itself lead to the conclusion that such element was ignored or overlooked: cf Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20 ; (1979) 140 CLR 675 at 680, 684. If a fact is not in itself disputed, that may be a reason why it is not mentioned. The bare fact of spending compensation money on an asset after becoming aware of a preclusion period would often tell against a finding of special circumstances, as the Guide points out. But in the present case what really opened up the possibility of a special circumstances finding is what happened after the purchase, including Mr Barrington's health and employment problems.


case_text: The Tribunal did not mislead counsel for the Secretary. Having raised the issue of Mr Barrington's costs, and given counsel the opportunity to submit anything he wished on the two questions mentioned, the Tribunal declined the offer of more detailed submissions. This case is a far cry from Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 which senior counsel for the Secretary relied on in the present appeal. There the trial judge told counsel that he did not accept the evidence of an expert witness on a particular issue, leading counsel to make no further submissions, and then decided the case by relying on the same witness. 39 The appeal will be dismissed with costs. I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: Counsel for the Applicant: P Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: N Batten Solicitor for the Respondent: Launceston Community Legal Centre Date of Hearing: 27 April 2006 Date of Judgment: 10 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/527.html


case_outcome: distinguished

case_text: Fundamental to the Tribunal's decision was its understanding that the relevant test of "substantial compliance" was as discussed in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 at 6. The Tribunal applied the "substantial compliance" test to Condition 8202(3)(b). However, the requirement in Condition 8202(3)(b) to provide a certificate cannot, logically, be satisfied by substantial compliance. Either Condition 8202(3)(b) is satisfied or it is not; either there is a certificate of an "at least satisfactory" academic result or there is not ( Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167 ; (2006) 156 FCR 199 per Heerey and Sundberg JJ). It is not in dispute that the education provider, the University of Sydney ('the University') had not provided the necessary certificate. There was no compliance with Condition 8202(3)(b). There is ' no scope for operation of the distinction between strict compliance and substantial compliance ' in determining whether Item 8202(3)(b) of Sch 8 of the Regulations is satisfied ( Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 at [10] , cited in Jayasekara at [5]).


case_text: The appellant submits that it is conceivable that, had he been informed in the s 359A letter that the real issue was the certification of his academic results as satisfactory, he could have obtained such certification. While I accept that it is not for the Court to evaluate possible outcomes and hypothetical scenarios, in the circumstances of this case I do not accept that it would have been even possible for the appellant to have complied with Condition 8202. I do not accept that the appellant could have obtained a certificate of at least satisfactory academic results when he had, after appeals, been excluded from enrolment for two years due to his failure to meet course requirements. In any event, at the relevant time, the necessary condition imposed on the visa by Condition 8202 was not satisfied. Even if the appellant could have attempted to persuade the University to reconsider, there is nothing in the language of Condition 8202 that invites a consideration of the internal processes of the education provider which led to a refusal to certify a satisfactory academic result. The Tribunal could not take that into account ( Cheng v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 71 at [35] [36]). Questions of academic progress should be left to the judgment of the education provider ( Jayasekara at [16]).


case_text: Fundamental to the Tribunal's decision was its understanding that the relevant test of "substantial compliance" was as discussed in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 at 6. The Tribunal applied the "substantial compliance" test to Condition 8202(3)(b). However, the requirement in Condition 8202(3)(b) to provide a certificate cannot, logically, be satisfied by substantial compliance. Either Condition 8202(3)(b) is satisfied or it is not; either there is a certificate of an "at least satisfactory" academic result or there is not ( Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167 ; (2006) 156 FCR 199 per Heerey and Sundberg JJ). It is not in dispute that the education provider, the University of Sydney ('the University') had not provided the necessary certificate. There was no compliance with Condition 8202(3)(b). There is ' no scope for operation of the distinction between strict compliance and substantial compliance ' in determining whether Item 8202(3)(b) of Sch 8 of the Regulations is satisfied ( Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 at [10] , cited in Jayasekara at [5]). 20 The appellant submits that it is conceivable that, had he been informed in the s 359A letter that the real issue was the certification of his academic results as satisfactory, he could have obtained such certification. While I accept that it is not for the Court to evaluate possible outcomes and hypothetical scenarios, in the circumstances of this case I do not accept that it would have been even possible for the appellant to have complied with Condition 8202. I do not accept that the appellant could have obtained a certificate of at least satisfactory academic results when he had, after appeals, been excluded from enrolment for two years due to his failure to meet course requirements. In any event, at the relevant time, the necessary condition imposed on the visa by Condition 8202 was not satisfied. Even if the appellant could have attempted to persuade the University to reconsider, there is nothing in the language of Condition 8202 that invites a consideration of the internal processes of the education provider which led to a refusal to certify a satisfactory academic result. The Tribunal could not take that into account ( Cheng v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 71 at [35] [36]). Questions of academic progress should be left to the judgment of the education provider ( Jayasekara at [16]).


case_title: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389

case_text: In Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [56] , Gaudron and Gummow JJ approved the observation of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration ; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400 to the effect that a writ may not be granted if no useful result could ensue. Their Honours observed at [58] that, consistent with the principle that '[t] he court does not act in vain ', the decision-maker may have been bound by the governing statute to refuse the administrative determination applied for, or ' the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor '.


case_text: In Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [56] , Gaudron and Gummow JJ approved the observation of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration ; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400 to the effect that a writ may not be granted if no useful result could ensue. Their Honours observed at [58] that, consistent with the principle that '[t] he court does not act in vain ', the decision-maker may have been bound by the governing statute to refuse the administrative determination applied for, or ' the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor '. 22 The requirement of procedural fairness is concerned with ' observance of fair decision -making procedures rather than with the character of the decision which emerges from the observance of those procedures ' ( Aala at [59]). Where there is a failure to observe fair decision-making procedures and the decision is invalid for want of procedural fairness, there is no reason to withhold discretionary relief in the absence of conduct on the part of the appellant warranting the refusal to exercise discretion ( SAAP at [83] [84] per McHugh J). There is no such conduct in this case. 24 However, relief may be withheld if there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure. Aala and SAAP leave open a refusal of relief if it is shown that the decision-maker was bound by the governing statute to refuse the application ( SZEEU at [232] per Allsop J). In those circumstances, the grant of relief would lack utility.


case_text: It follows that the Tribunal failed to comply with s 359A(1) of the Act. This constitutes jurisdictional error ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162). Even if it could be said that the test applied by the Tribunal assumed the lack of certification and hence failure to comply with Condition 8202, so that the application of the incorrect test did not matter, s 359A(1) of the Act required that the appellant be invited to comment on information that did form the reason or part of the reason for the Tribunal's decision. That did not happen. 17 The Federal Magistrate concluded at [29] that it was not necessary for the Tribunal to advise the appellant in the s 359A letter that the University had not provided a certificate. To the extent that the Tribunal decision was not based upon the absence of a certificate simpliciter , his Honour was not in error. However, I cannot agree with his Honour that the s 359A letter clearly set out particulars of the information which formed the reason or part of the reason for the Tribunal's decision (s 359A(1)(a)) or that it ensured, as far as was reasonably practicable, that the appellant understood why it was relevant to the review (s 359A(1)(b)). I also do not, with respect, agree with the learned Federal Magistrate that the reason for the affirmation by the Tribunal of the Delegate's decision was ' ultimately ' the absence of certification of a satisfactory academic result (at [30]). While the absence of certification was a fact before the Tribunal, the decision was not based upon that fact, nor did it form the basis for the s 359A letter. 18 Accordingly, in failing to apply the correct test and in failing to comply with s 359A of the Act, the Tribunal committed jurisdictional error. 19 The following facts are not in dispute: • At no relevant time was there a certificate issued by the education provider that the appellant had achieved an academic result that was "at least satisfactory". • The appellant had failed 22 out of 27 subjects in 2001, 2002 and 2003. • The appellant had been excluded from the course that he had been studying. • The reason for the exclusion was that he failed to meet course requirements. • The University described his academic performance in terms of it being certified as not satisfactory. • The appellant had exhausted the University's appeal mechanisms without success. • The University had informed the Department that, as at 7 July 2004, the appellant was no longer enrolled at the University. • The University also informed the Department that the appellant was not permitted to re-enrol for a period of two years. • The Tribunal decision is dated 9 May 2005. 22 The requirement of procedural fairness is concerned with ' observance of fair decision -making procedures rather than with the character of the decision which emerges from the observance of those procedures ' ( Aala at [59]). Where there is a failure to observe fair decision-making procedures and the decision is invalid for want of procedural fairness, there is no reason to withhold discretionary relief in the absence of conduct on the part of the appellant warranting the refusal to exercise discretion ( SAAP at [83] [84] per McHugh J). There is no such conduct in this case. 24 However, relief may be withheld if there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure. Aala and SAAP leave open a refusal of relief if it is shown that the decision-maker was bound by the governing statute to refuse the application ( SZEEU at [232] per Allsop J). In those circumstances, the grant of relief would lack utility.


case_text: In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [231] , Allsop J construed this as referring to a consideration of whether the breach of that duty to accord procedural fairness was or was not trivial; in the operation of the principles of procedural fairness (and the statutory provisions providing it) adherence to the mandated process and procedure is vital. It is not a proper basis, in the exercise of discretion, to refuse relief for failure to comply with s 359A of the Act simply because no injustice had resulted or ' because to do so would be in the opinion of the Court futile or that the case is so weak that it does not warrant appellate intervention ' ( SZGPB v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 587 at [56] per Rares J). 24 However, relief may be withheld if there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure. Aala and SAAP leave open a refusal of relief if it is shown that the decision-maker was bound by the governing statute to refuse the application ( SZEEU at [232] per Allsop J). In those circumstances, the grant of relief would lack utility. 27 In Wang , as here, futility is not to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A of the Act or by asking if a decision by the Tribunal in the future to refuse the application were inevitable because there has been no relevant change of circumstances. Justice Besanko was of the view, consistent with Allsop J in SZEEU , that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at [32]). In the present case, as in Wang , the Tribunal was so bound and it was not possible that the Tribunal would reach a different result (cf Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536). I agree, with respect, with the reasoning of Besanko J.


case_text: In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [231] , Allsop J construed this as referring to a consideration of whether the breach of that duty to accord procedural fairness was or was not trivial; in the operation of the principles of procedural fairness (and the statutory provisions providing it) adherence to the mandated process and procedure is vital. It is not a proper basis, in the exercise of discretion, to refuse relief for failure to comply with s 359A of the Act simply because no injustice had resulted or ' because to do so would be in the opinion of the Court futile or that the case is so weak that it does not warrant appellate intervention ' ( SZGPB v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 587 at [56] per Rares J).


case_text: As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [29] , '[t] he present is a case in which no useful result could ensue from the grant of the relief desired by [the appellant] . This is so because...the decision-maker was bound by the governing statute to refuse [the appellant's case]' (see also [87] per Kirby J and [91] per Hayne J). It follows that relief should be refused.


case_text: In Wang , as here, futility is not to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A of the Act or by asking if a decision by the Tribunal in the future to refuse the application were inevitable because there has been no relevant change of circumstances. Justice Besanko was of the view, consistent with Allsop J in SZEEU , that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at [32]). In the present case, as in Wang , the Tribunal was so bound and it was not possible that the Tribunal would reach a different result (cf Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536). I agree, with respect, with the reasoning of Besanko J.


case_text: The circumstances in Wang v Minister for Immigration and Citizenship [2007] FCA 488 are similar to those in this case. Ms Wang did not make satisfactory progress and failed a number of subjects. She was excluded by the relevant Faculty for unsatisfactory academic progress. A delegate of the Minister decided that there had been a breach of Condition 8202 and concluded that the decision to cancel the student visa was mandatory. Ms Wang applied to the Tribunal for review. The Tribunal sent her a letter in purported compliance with s 359A of the Act. Justice Besanko concluded that the letter did not comply with s 359A(1)(b) of the Act. The Minister did not dispute that such failure constituted jurisdictional error (at [29] to [30]). His Honour considered the finding of the Federal Magistrate that it would, in any event, be futile to grant relief. The Federal Magistrate had based this conclusion on the fact that the appellant had not sought to adduce any material to indicate that the academic performance could or should have been altered. The appellant had submitted that, as long as there was a theoretical possibility that relief would not be futile, the discretion should not be exercised to refuse relief (at [31]). 26 Justice Besanko observed at [32] that the only way in which a cancellation of the student visa could be avoided was if the university's decision not to certify the appellant's academic results as satisfactory was altered. There, as here, the decision by the university to exclude the appellant had been taken some two to three years ago. There, as here, it was not suggested that, since the Delegate's decision, the university had been approached to alter its decision or that there were any proceedings on foot to achieve that result. His Honour held at [32] that ' at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant's student visa '. 27 In Wang , as here, futility is not to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A of the Act or by asking if a decision by the Tribunal in the future to refuse the application were inevitable because there has been no relevant change of circumstances. Justice Besanko was of the view, consistent with Allsop J in SZEEU , that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at [32]). In the present case, as in Wang , the Tribunal was so bound and it was not possible that the Tribunal would reach a different result (cf Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536). I agree, with respect, with the reasoning of Besanko J. 29 The Tribunal applied the wrong test to the question of substantial compliance with Condition 8202 in circumstances where there was no compliance with Condition 8202(3)(b). The s 359A letter was referable to the Tribunal decision which was based not upon compliance with Condition 8202(3)(b) but upon whether there had been "substantial" compliance with that condition. That constituted jurisdictional error. However, Condition 8202 had not and could not have been complied with. The appellant submits that there is a theoretical possibility that, had he been informed in accordance with s 359A of the Act that the reason for the Tribunal decision was the lack of certification of at least satisfactory academic performance, he might have approached the University and requested that it provide the necessary certification. As in Wang , at a practical level, this had not been achieved, would not have been achieved and could not have been achieved. The inevitable result of a rehearing is a finding of lack of compliance with Condition 8202 in respect of the visa and a consequent refusal of the appellant's application for a further student visa. 30 Federal Magistrate Lucev was not in error in finding that to remit the matter to the Tribunal for further hearing would be ' an exercise in futility '. The appeal should be dismissed. The appellant should pay the first respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 15 June 2007 Solicitor for the Appellant: McMahons National Lawyers Counsel for the First Respondent: T Wong Solicitor for the First Respondent: Clayton Utz Date of Hearing: 9 May 2007 Date of Judgment: 15 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/907.html


case_title: Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261


case_outcome: referred to

case_text: In my view, the facts recounted above show that the Commissioner is a person aggrieved by the deregistration of JHAF and has standing to apply for reinstatement of its registration. The public responsibilities of the Commissioner can be compared with those of the Australian Competition and Consumer Commission, which was acknowledged to have standing to apply for a reinstatement under s 601AH in Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688. 17 JHAF reduced its capital and paid a dividend in late 2001 and made a second reduction of its capital in 2003. These three transactions, most significantly the first two in 2001, involved a denuding of the company of its assets. The Commissioner wishes to have all three investigated by a liquidator with a view to the possible replenishment of JHAF's coffers to enable it to pay tax. 18 JHAF was incorporated by registration on 17 September 1999. One share in its capital was issued to its parent company upon incorporation and a further 742,611 shares were issued to its parent on 23 February 2000. All 742,612 shares were of $1,000 each and were issued as having been fully paid in cash. The immediate parent company which held all of the shares was JHFBV, to which I referred at [10] above. 80 In Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 , Austin J addressed the question "When should the Court be satisfied that it is just that the company's registration be reinstated?". His Honour said (at [27]), with reference to authorities: The wording of the section is very broad, and the cases confirm that it gives the Court a wide discretion. The Court takes into account the circumstances in which the company came to be dissolved; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement...


case_outcome: approved

case_text: Section 509(5) of the Corporations Act provided that ASIC must deregister a company at the end of a period three months after the liquidator lodges with ASIC a return of the holding of the final meeting. Mr Green filed that return on 23 May 2005. ASIC deregistered JHAF on 23 August 2005. As noted earlier, upon deregistration JHAF ceased to exist. Clearly, Mr Green is no longer in office as its liquidator. It is therefore not quite appropriate to speak of his being "replaced". Although I reached this view before becoming aware of Stone J's decision in JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 167 FCR 212 , I note that it is totally in conformity with her Honour's. 7 Section 601AH(5) provides expressly that upon a reinstatement, a person who was a director immediately before the reinstatement "becomes a director again as from the time when ASIC or the Court reinstates the company". The existence of this provision suggests, first, that in the absence of such a provision persons in office at the time of deregistration are not automatically reinstated, and, second, that all that is at issue is whether a person should be appointed to an office as from the time of the reinstatement . 8 Mr Green, who has been served, consents to such orders as the Court may make save as to costs, and does not wish to be heard on the application.


case_text: It has been said that the expression "a person aggrieved by the deregistration" should not be narrowly construed: see Re Proserpine Pty Ltd and the Companies Act [1980] 1 NSWLR 745 at 749 [15]; Pacanowski v Australian Securities Commission (1995) 57 FCR 173 at 175. It does not matter that the person's interest in the decision to deregister arose after the deregistration: Proserpine at 749 [15].


case_title: Re Proserpine Pty Ltd and the Companies Act [1980] 1 NSWLR 745


case_text: At [54], his Honour observed that the reported cases establish that the Court will not make an order which is futile, as where the reinstated company would be left without the funding necessary to permit the liquidator to do any work. His Honour noted that in Re Steelmaster Pty Ltd (in liq ) (1992) 6 ACSR 494, the Court made an order, albeit by consent, for the applicant for reinstatement to pay the costs and disbursements of the liquidator incurred as a result of the reinstatement, including the costs of any further proceedings under s 509 of the Corporations Law. 82 The payments by way of return of capital and interim dividend of November 2001 were made to JHFBV, a corporation that no longer exists. The second return of capital, that of September 2003, was to JHIFBV, a company which, so far as the evidence shows, still exists. The second return of capital, however, was in a sum of only $7,608,773 a small fraction of the amount exceeding $150,000,000 which is expected to be the amount of the tax and shortfall penalties (see [46] above). 83 The Commissioner refers to the fact that the two capital reductions divested JHAF of all of its assets, and that the second of them took place in contemplation of the winding up which was resolved upon the following day. He submits that these steps were taken in the knowledge of the Commissioner's interest in the transactions in which JHAF had previously participated, and that "[t]here is ample room to investigate the validity of those transactions".


case_text: is evident from the reasons of the Federal Magistrates Court that the submissions before that court, understandably enough perhaps with a person appearing for himself, ventured into the factual merits of the visa application. The learned Federal Magistrate correctly observed, by reference to pertinent authority, namely Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 , that merits review before that court was not open. There is certainly nothing inherently implausible about the prospect of strong passions and perhaps even, sadly, acts of violence being engendered in respect of a relationship which bridges a religious divide. However, the assessment of whether or not, in this particular case and against such a background, a visa application ought to be successful was a matter for the Minister and his delegates in the first instance and on external merits review by the independently constituted Refugee Review Tribunal. Where, as here, a Tribunal has made findings based on conclusions as to credit which are not inherently illogical, it would transgress the role consigned to the courts on judicial review to interfere with a conclusion of the Tribunal. Against such a background, there was no error on the part of the Federal Magistrates Court in refusing the judicial review application. Further, whilst it may have been a counsel of perfection for that court to have explained in detail the nature of a judicial review proceeding to an unrepresented person appearing before it, particularly one whose first language was not English and whose culture was different to that of Australia, there was no obligation on that court so to do.


case_text: learned member who constituted the Tribunal identified as the only issue before him the question whether the applicant satisfied the requirements of s 24 of the VE Act. After reviewing the vague and contradictory evidence of the applicant's work history, reciting the history of his claims and applications, and summarising the legislative scheme, the Tribunal expressed a finding about the remunerative work that the applicant was undertaking after his military service. In doing so, the Tribunal reminded itself of the proposition found in Repatriation Commission v Hendy [2002] FCAFC 424 (2002) 76 ALD 47 at [36] , where the Court said: The tribunal's task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider "remunerative work that the veteran was undertaking" does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. The Tribunal found that, after leaving the army, the applicant worked for some 24 years doing plumbing and welding work associated with the installation of commercial air-conditioners. He was then employed by Haden Engineering installing air-conditioning units and ducting in commercial and industrial premises. The applicant has a plumbing certificate from RMIT. The Tribunal found that the relevant remunerative work which the applicant was undertaking was that of an air-conditioning plumber or installer. That task involved significant manual work, including the lifting of heavy items and work in confined spaces and awkward positions. The Tribunal then addressed the cause of the applicant's incapacity for work, particularly the application of the "alone" test, found in s 24(1)(b) and (c) of the VE Act. At [28] of its reasons for decision, the Tribunal said: It should therefore be apparent that if any factors other than Mr Baljas' accepted medical conditions prevent him from continuing to undertake the remunerative work that he was undertaking, he will not be eligible for a pension at the special rate.


case_text: for the applicant contended that the Tribunal took the wrong approach to determining what was the remunerative work that the applicant was prevented from continuing to undertake. It was said that the correct approach was to determine, as a matter of hypothetical fact, an assessment of what the applicant "probably would have done if he had none of his service disabilities": Repatriation Commission v Smith (1987) 15 FCR 327 at 337 per Beaumont J, with whom Northrop and Spender JJ concurred. Further, the phrase "remunerative work which the respondent was undertaking" in s 24(1)(c) must be "read as a reference to the type of work which the member previously undertook and not to any particular job": Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. The argument was that the Tribunal had restricted itself to a consideration of the actual job that the applicant had been employed to perform by Haden Engineering, and had not considered either the nature of his work in general, or other work that he might have performed but for his war-caused incapacity.


case_title: Banovich v Repatriation Commission (1986) 69 ALR 395


case_text: for the applicant argued that the Tribunal was bound to apply s 24(2)(b) of the VE Act as a provision ameliorating the effect of s 24(1)(c). Relying on Sheehy v Repatriation Commission (1996) 66 FCR 569 at 573-574, counsel contended that the applicant's remunerative activity had ceased on his suffering of the injury to his shoulders. After that, he became a person "who has not been engaged in remunerative work". The Tribunal should have seen his return to work on light duties as not engaging in remunerative work, because the attempt was unsuccessful, but should have seen that attempt as evidence that the applicant "has been genuinely seeking to engage in remunerative work". The attempt to rely on Sheehy , and to argue that the period of light duties undertaken by the applicant after he had suffered the injury to his shoulders was not itself engaging in remunerative work, appears to be a device adopted by counsel for the applicant to overcome the fact that there was no evidence at all that the applicant had been genuinely seeking to engage in remunerative work, or would have been so seeking but for his war-caused incapacity. In Sheehy , the Full Court held that a veteran could not be said to "undertake" remunerative work, or to have been "undertaking" such work unless he or she had managed to perform such work, to undertake it successfully or effectively. In that case, it had become apparent within a week of the return to work that the veteran concerned was unable to cope with his duties. In the present case, the return to work persisted for three months, according to the applicant's evidence. His evidence was that he started off doing all light duties and "then all of a sudden we're back to normal." He indicated that he was carrying heavy items and doing work of a kind he had done usually. At least for that period, it was clear that the applicant's own evidence was that he was undertaking that work. There was no occasion for the Tribunal to make a finding that the three-month period of return to work should have been disregarded in the determination of what remunerative work the applicant had been undertaking. The result of this analysis is that there was no evidence that the applicant had been seeking to engage in remunerative work, or would have been so seeking but for his war-caused incapacity. He declined an approach by his former employer to be retrained for an office job. There were suggestions in cross-examination that he was reluctant to engage in employment, because there were no jobs within a reasonable distance of his home, and because he had responsibility for caring for young children at his home. On the evidence, no occasion arose for the Tribunal to consider the application of s 24(2)(b). Any finding that the applicant had been seeking to engage in remunerative work, or would have done so but for his war-caused incapacity, would have been perverse. Leniency to the applicant Counsel for the applicant also put the well-worn argument that the Tribunal had failed to take account of the beneficial nature of s 24 of the VE Act, and had disregarded the requirements of s 119 of the VE Act. This was said to have been demonstrated by the Tribunal in a number of ways. One was simply noting conflicting evidence, without attempting to resolve the conflicts and particularly without asking the applicant or his counsel to clarify the situation. Another was the Tribunal finding that the applicant had stopped work due to bilateral arm pain, and allegedly ignoring his evidence that he was not able to cope with work because of the medication he was taking for other conditions. Yet another was the Tribunal improperly restricting the nature of remunerative work that it considered, but considering only the particular job that the applicant had been performing prior to his injury. Another was failing to identify the type of work that the applicant was capable of doing and trained to perform, which allegedly led the Tribunal to fail properly to identify the effect of the accepted war-caused disabilities on the applicant's ability to continue with or resume remunerative employment. Finally, it was suggested that the Tribunal failed to determine whether the accepted disabilities were the substantial cause of the applicant's inability to obtain work.


case_text: Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347 at [19] - [26] , I set out the reasoning that led me to the view that s 24(2)(b) is not construed properly as an ameliorating provision in a case such as the present. Section 24(1)(c) of the VE Act deals with a person who has been "prevented from continuing to undertake remunerative work that the veteran was undertaking", ie with someone who has worked. The purpose of s 24(2)(b) is to enable a person who cannot fit into this category, because of never having worked since his or her relevant war service, to claim pension at the special rate if he or she can satisfy the requirements of s 24(2)(b). For the reasons I gave in Giesen , I remain of the view that s 24(2)(b) has no application to the present case. In Giesen at [27], however, I indicated that I was prepared to consider the application of s 24(2)(b), on the basis that both parties took the view that it was applicable. In the present case, both parties also expressed the view that s 24(2)(b) is an ameliorating provision, applicable even where a veteran has ceased to engage in remunerative work.


case_text: Counsel for the first and second defendants has referred me to a number of authorities which recognise that the time pressures imposed by the Act in relation to administration make it inevitable that investigations and reports by administrators will be less than complete. They also support the proposition that deeds are not to be lightly set aside, stressing the need for materiality of misleading statements in the sense outlined in s 445D(1)(a)(ii) Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 ; Khoury v Zambena Pty Ltd (1997) 23 ACSR 344 ; (1997) 15 ACLC 620 affirmed in Joseph Khoury & Sons v Zambena Pty Ltd [1999] NSWCA 402 ; (1999) 217 ALR 527 ; Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 ; Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 ; (1996) 14 ACLC 659 ; and Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99 ; (2000) 156 FLR 453; (2000) 34 ACSR 391.


case_title: Deputy Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356


case_title: Deputy Commissioner of Taxation v Pddam Pty Ltd (1996) 19 ACSR 498 ; (1996) 14 ACLC 659


case_title: Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99 ; (2000) 156 FLR 453; (2000) 34 ACSR 391