case_text: At the outset, two things can be noted. First, the question is not how the Anti-Discrimination Act itself characterises the Tribunal, but whether the Tribunal answers the description of a "court" in ss 71 and 77 (iii) of the Constitution and s 39(2) of the Judiciary Act . Secondly, the terms "court" and "court of a State" are to be construed in a context where, subject to such qualifications as may arise from the Kable doctrine ( Kable v Director of Public Prosecutions [1996] HCA 24 ; (1996) 189 CLR 51), the separation of powers, strictly applied in relation to the federal judiciary, does not apply at the State level. 60 The applicants accepted that there is no comprehensive test by which it is possible to define the characteristics of a court of a State. However they point to the following features: • The Tribunal is not called a court; • Not all members of the Tribunal must be lawyers, although the chairperson must be a legal practitioner of not less than seven years standing, a magistrate or former judge. If there is only one member, he or she must have these qualifications (s 12); • Members do not take an oath of office; • Members have no security of tenure, they are appointed by the Minister (s 12(1) (b) and (c)) and can be suspended or removed by the Minister ( Acts Interpretation Act 1931 (Tas), s 21(1)(a)) ; • Proceedings in the Tribunal are commenced by referral by the Commissioner, not by the complainant (s 78(1)); • A person may be represented before the Tribunal only with its permission (s 85(2)); • The Tribunal is not bound by the rules of evidence and is to proceed with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before the Tribunal permit (ss 86(1), 87(4)(a)); • The Tribunal may start or continue an inquiry in the absence of the complainant or any other relevant person (s 86 (3)); • Appeals lie from the Tribunal to the Supreme Court of Tasmania on questions of law or fact (s 100); • It is an offence to hinder proceedings under the Act, insult persons performing functions under the Act etc (s 106) but there is no contempt power conferred on the Tribunal itself. 61 On this issue the State of Tasmania supported the applicants. However, the second respondent pointed out: • The Tribunal's function is to apply the legal standards prescribed by the Anti-Discrimination Act to the facts it finds; it does not operate by way of conciliation, arbitration or rule making; • The Tribunal is empowered to make orders or grant relief of a kind traditionally granted by courts, including (in substance) injunctions both prohibitive and mandatory, monetary compensation and fines (s 89) ; • Although called an inquiry (s 78) , the proceeding before the Tribunal is essentially inter partes and adversarial. There must be a complainant who has complained to the Commissioner, and there must be a respondent, the person, class of persons or organisation against whom the complaint is made (s 62(1)(b)) ; • The Tribunal may amend complaints (s 84) ; • The Tribunal makes procedural directions (s 80) ; • The Tribunal is required to give reasons when requested by a party (s 93) ; • Hearings are to be held in public unless the Tribunal otherwise orders (s 85(1)) ; • The Tribunal may take evidence on oath or affirmation (s 87(1)) ; • The Tribunal may summon witnesses (s 87(2)) ; • The Tribunal must observe the rules of natural justice (s 87(4)(a)) ; • The Tribunal may make an order for costs if it considers the circumstances justify such an order (s 95) ; • The Tribunal's orders, upon filing with the Supreme Court, become enforceable as if they were orders of that Court (s 90) ; • A member of the Tribunal has immunity against liability for conduct in good faith done in exercise of powers or performance of functions (s 103).


case_outcome: cited

case_text: A feature that commonly distinguishes administrative tribunals and other administrative decision-makers from courts is that the former are made the sole repository of questions of fact and policy. Judicial review or appeal is typically limited to questions of law, as for example in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), or confined to statutory grounds such as those contained in ss 17 and 20 of the Judicial Review Act 2000 (Tas) or common law grounds: Craig v South Australia [1995] HCA 58 ; (1985) 184 CLR 163. A full appeal on fact and law suggests that the body whose decisions are subject to such rights is a court because it is a part of a system which resolves, at trial and appellate level, legal and factual disputes between citizens and between state and citizen. 65 Other features relied on by the applicants are at best equivocal as to the characterisation of the Tribunal as a court of a State. For example, to provide that the Tribunal is not bound by the rules of evidence is to do no more than legislate as to the law of evidence which is to be applied in a particular Tasmanian court. The common law of evidence has already been substantially modified by the Evidence Act 2001 (Tas).


case_title: Tana v Baxter (1986) 180 CLR 572

case_text: Pointing out that the Tribunal is called a tribunal, not a court, the applicants referred to Tana v Baxter (1986) 180 CLR 572. The issue in that case was whether certain claims for relief before the Industrial Commission of New South Wales fell within s 11(1)(a)-(f) of the Service and Execution of Process Act 1901 (Cth) so as to enable service out of that State. The majority (Gibbs CJ, Mason, Deane and Dawson JJ) noted at 161 that it was not disputed that the Commission, which was declared by s 14(1) of the Industrial Arbitration Act 1940 (NSW) to be a superior court of record, was a court within the meaning of s 11(1) of the Service and Execution of Process Act . Brennan J however said at 582: "As at present advised, I should not think that such a provision [scil, s 14(1)] necessarily establishes that the tribunal to which it relates is a court for the purposes of s 71 of the Constitution , albeit such a provision is an important indicium of a tribunal's character. The Commission's character as a court was not contested in these proceedings and I should wish to reserve consideration of that question until it is argued."


case_outcome: discussed

case_text: I do not think Brennan J's reservation carries the matter much further. What is called a tribunal (or a commission, or a panel, or a board) may be on closer examination be a court for the purposes of s 77(iii) , just as a body which is called a court may not satisfy the constitutional requirement. In Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282, Ipp JA, with whom Spigelman CJ and Handley JA agreed, considered at [37]-[69] whether the Workers Compensation Commission of New South Wales was a "court" within the meaning of s 77(iii). After analysing in detail the particular legislation constituting that body his Honour came to the conclusion that it was not. However his Honour did not rely on, or even mention, the fact that the body in question was called a commission. Implicitly it seems his Honour took the same approach as did McHugh JA in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515: "There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a 'court' even though it is not called a court and has lay members. Function and purpose, not labels, should be our guide." 80 There have been decisions of the Victorian Civil and Administrative Tribunal some of which hold, and others of which deny, that that body is a court. Recently Judge O'Connor of the Appeal Panel of the New South Wales Administrative Decisions Tribunal held that that body was a "court" both in the "general sense" and "in the Judiciary Act sense": Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [31] , [39]. His Honour analysed in detail the decision in Orellana-Fuentes . He observed at [31] that the Court of Appeal had taken a "balance sheet approach", comparing conventional attributes of a court in the Australian system with elements in the structure that deviated from the conventional attributes, many of which were plainly of a non-judicial character and did not connote the level of independence expected of a court. He found at [43] that the key factors which tipped the balance were the "significant administrative and non-judicial attributes". These are discussed in the judgement of Ipp JA in Orellana-Fuentes at [44]-[51] and notably included the conciliation function of Arbitrators, who were members of the Commission (and appointed by the Commission's President, in itself something "foreign to the notion of a court": [42]) and the reference of medical disputes to "approved medical specialists". Comparable features were not present in the body under consideration in Radio 2UE , nor are they present in the Tribunal. Indeed a feature of the Anti-Discrimination Act is the conferral of conciliation functions on the Commissioner, rather than the Tribunal, whose role, undoubtedly a judicial one, comes into play after conciliation has failed.


case_text: I do not think Brennan J's reservation carries the matter much further. What is called a tribunal (or a commission, or a panel, or a board) may be on closer examination be a court for the purposes of s 77(iii) , just as a body which is called a court may not satisfy the constitutional requirement. In Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282, Ipp JA, with whom Spigelman CJ and Handley JA agreed, considered at [37]-[69] whether the Workers Compensation Commission of New South Wales was a "court" within the meaning of s 77(iii). After analysing in detail the particular legislation constituting that body his Honour came to the conclusion that it was not. However his Honour did not rely on, or even mention, the fact that the body in question was called a commission. Implicitly it seems his Honour took the same approach as did McHugh JA in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515: "There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a 'court' even though it is not called a court and has lay members. Function and purpose, not labels, should be our guide."


case_text: The provision for enforcement of the Tribunal's orders by means of filing in the Supreme Court is effectively the same as that in the Commonwealth legislation considered in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 ; (1995) 183 CLR 245. However, this circumstance rather tends to support a conclusion that the Tribunal is a court of State. At a federal level, a purported conferral of judicial power on a body which is not a court in the federal sense, i.e. one constituted by judges appointed until age 70 under s 72 of the Constitution , will be invalid because the separation of powers, mandated at a federal level, has been breached. But this separation of powers is not applicable at a State level and a "court of a State" has no particular constitutional tenure qualification (although, as will be seen, the degree of security is relevant). The fact that orders of the Tribunal can be enforced by the same machinery as orders of the Supreme Court without the need for any intermediate permission or authorisation confirms the position of the Tribunal as part of the judicial system of the State of Tasmania.


case_outcome: applied

case_text: The fact that members of the Tribunal have no security of tenure in terms derived from the Act of Settlement 1700 (Imp) (appointment for life or until an age certain with removal only by the legislature) was relied on strongly by the applicants, but was not suggested to be conclusive. The critical test is whether, if the Tribunal is to be a court capable of exercising the judicial power of the Commonwealth, it be and appear to be independent and impartial: North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31 ; (2004) 206 ALR 315 at [29] . One asks whether reasonable and informed members of the public would conclude that the Tribunal was free from the influence of the other branches of government in exercising its judicial function: Bradley at [65]. 70 Gleeson CJ observed in Bradley at [3] that there is no single ideal model of judicial independence, personal or institutional. For example, s 72 of the Constitution does not permit the appointment of acting judges to federal courts but acting judges for fixed on renewable terms are commonly appointed in some State and Territory courts. 71 In the case of inferior courts, less stringent conditions are necessary in order to satisfy security of tenure: Ell v Alberta [2003] 1 SCR 857 at 874 (Supreme Court of Canada), cited in Bradley at [63]. As Major J, in giving the judgment of the Supreme Court, went on to say (at 875): "The essence of security of tenure is that members of a tribunal be free from arbitrary or discretionary removal from office." 72 In Bradley at [35]-[38] McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ pointed out that, until quite recent times in Australia, State and Territory summary courts have been constituted by members of the public service and subject to the regulation and discipline inherent in that position. One might add that this circumstance is explicitly recognised in s 39(2)(d) of the Judiciary Act . The federal jurisdiction of a court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate or "some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction". At the time the Judiciary Act was passed, such magistrates would have been salaried officials, as distinct from honorary justices of the peace, and members of their State public service, with nothing like Act of Settlement tenure. (And, as late as the 1970s Stipendiary and Police Magistrates in some States were not required to be lawyers.) Moreover, the fact that Parliament thought it necessary to impose such a condition suggests that at the time of the drafting of the Constitution a few years earlier it was contemplated that even honorary justices, who had no security of tenure at all, would, in the absence of such a condition, constitute a court of a State. 73 To my mind, reasonable and informed members of the public would think that the Tribunal was free from influence of the other branches of the Tasmanian government, and particularly the Executive. On reading the Anti-Discrimination Act , such persons would observe that it specifically applied to the conduct of the Tasmanian government, and other governments. They would also note that the Tribunal was empowered to do most of the things courts do, to conduct hearings in public of disputes between parties, to summon witnesses, to find disputed facts and apply legal rules to facts as found, to give reasons for its decisions, and to make orders which can be immediately enforced. Let it be supposed somebody put to such reasonable and informed members of the public that the Minister could just ring up the Tribunal and tell it how to decide cases, and that if a member of the Tribunal did not do the Minister's bidding, he or she could be dismissed. Such reasonable and informed members of the public would point out that there are very practical political sanctions against such an eventuality. To take the most obvious example, where the Minister dismisses a Tribunal member because he or she dislikes a decision made against the government. Public, political and media attacks on the government would be inevitable. Ministers would know this, and members of the Tribunal would know Ministers knew this. The legal recourse that may be available to members of the Tribunal will be examined in a moment, but one cannot ignore the practical political setting in which the Tribunal exists. The Anti-Discrimination Act holds out to the Tasmanian public a clear promise that the Tribunal will hear and determine complaints of unlawful discriminatory conduct, that in doing so it will act fairly and independently and make orders remedying breaches of the Act, if necessary against the Tasmanian Government. A public expectation that the independence of the Tribunal will be respected by the Government is in itself a circumstance of some significance. 74 The legal remedies that may be open to a member of a putative court faced with adverse governmental action (or inaction) are relevant in assessing whether the requirements of appearance and reality of independence are satisfied. Such factors formed part of the reasoning in Bradley at [65]. 75 It would be open to a member of the Tribunal to challenge, and have set aside, a decision for suspension or dismissal on grounds under s 17(2) of the Judicial Review Act , including: • Breach of the rules of natural justice (par (a)); • Improper exercise of power (par (e)); • No evidence (par (h)). The improper exercise of power ground is defined by s 20 to include: • Taking irrelevant considerations into account (par (a)); • Failing to take relevant considerations into account (par (b)); • Exercise of the power for a purpose other than the purpose for which the power is conferred (par c)); • Bad faith (par (d)); • An exercise of power so unreasonable that no reasonable person could so exercise the power (par (h)); • Any other exercise of a power in a way that is an abuse of power (par (i)). 76 The last-mentioned ground would seem particularly apt for a dismissal grounded in Ministerial dissatisfaction with a particular decision of the Tribunal, or for reasons otherwise arbitrary or capricious. Moreover, there is a right, enforceable by the Supreme Court, to obtain reasons for a decision: ss 28 - 37 . Practically speaking, a member of the Tribunal with a right to challenge suspension or dismissal before an independent Supreme Court may be in a stronger position than a Supreme Court judge faced with a hostile government which happens to control both Houses of the legislature.


case_title: Ell v Alberta [2003] 1 SCR 857 at 874

case_text: In the case of inferior courts, less stringent conditions are necessary in order to satisfy security of tenure: Ell v Alberta [2003] 1 SCR 857 at 874 (Supreme Court of Canada), cited in Bradley at [63]. As Major J, in giving the judgment of the Supreme Court, went on to say (at 875): "The essence of security of tenure is that members of a tribunal be free from arbitrary or discretionary removal from office."


case_text: The second respondent relied on Henderson , but I am inclined to agree with the applicants that it has little relevance to the issue of the present case now under consideration, although it will need to be considered later. Mr Henderson owned a house which he leased to the Defence Housing Authority, a Commonwealth body. He sought the Authority's permission to inspect the premises and provision of a key for that purpose. This seemingly humdrum event provoked massive constitutional litigation. Mr Henderson asked for orders from the New South Wales Residential Tenancies Tribunal, a body established under the Residential Tenancies Act 1987 (NSW). A majority of the High Court held that the matters dealt with by the State Act did not fall within the Commonwealth's exclusive powers under s 52(ii) of the Constitution , that the State Act was not inconsistent with the Commonwealth legislation establishing the Authority, and that the principle in Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40 ; (1962) 108 CLR 372 did not prevent the valid operation of the State Act in the circumstances. 79 As a fourth alternative, the Commonwealth in Henderson argued that s 64 of the Judiciary Act did not operate to subject it to the orders sought under the State Act. Section 64 provides that in "any suit" to which the Commonwealth or a State is a party, the rights of parties shall be as nearly the same as in a suit between subject and subject. (There appears to be a misprint at 190 CLR, 429 where the arguments are summarised; "invalid" should be "valid".) While the Commonwealth argued that "suit" in s 64 refers to a suit "in a court properly invested with federal jurisdiction" (at 417), it seems the State of New South Wales did not assert the contrary. Its counsel (at 417) accepted there was no "suit in federal jurisdiction", as did Mr Henderson's (noted by Gummow J at 474). It was not necessary to decide the s 64 point.


case_text: There have been decisions of the Victorian Civil and Administrative Tribunal some of which hold, and others of which deny, that that body is a court. Recently Judge O'Connor of the Appeal Panel of the New South Wales Administrative Decisions Tribunal held that that body was a "court" both in the "general sense" and "in the Judiciary Act sense": Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [31] , [39]. His Honour analysed in detail the decision in Orellana-Fuentes . He observed at [31] that the Court of Appeal had taken a "balance sheet approach", comparing conventional attributes of a court in the Australian system with elements in the structure that deviated from the conventional attributes, many of which were plainly of a non-judicial character and did not connote the level of independence expected of a court. He found at [43] that the key factors which tipped the balance were the "significant administrative and non-judicial attributes". These are discussed in the judgement of Ipp JA in Orellana-Fuentes at [44]-[51] and notably included the conciliation function of Arbitrators, who were members of the Commission (and appointed by the Commission's President, in itself something "foreign to the notion of a court": [42]) and the reference of medical disputes to "approved medical specialists". Comparable features were not present in the body under consideration in Radio 2UE , nor are they present in the Tribunal. Indeed a feature of the Anti-Discrimination Act is the conferral of conciliation functions on the Commissioner, rather than the Tribunal, whose role, undoubtedly a judicial one, comes into play after conciliation has failed.


case_text: A law of a State will be inconsistent with a law of the Commonwealth: • where simultaneous obedience to both laws is impossible: Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2 ; (1968) 117 CLR 253 at 258-259; • where one law takes away a right, power or authority conferred by the other law: Botany Municipal Council v Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 464; • where the State law would alter, impair or detract from the operation of the Commonwealth law or the exercise of a power under the Commonwealth law: Telstra Corporation v Worthing [1999] HCA 12 ; (1999) 197 CLR 61 at 76, Victoria v Commonwealth (The Kakariki) [1937] HCA 82 ; (1937) 58 CLR 618 at 630-631, APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 219 ALR 403 at [41] - [45] ; and • where a law of a State enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively: Commonwealth v Western Australia (1999) 196 CLR 302 at [55]; Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at 465-466; Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483.


case_title: Botany Municipal Council v Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 464


case_title: Victoria v Commonwealth (The Kakariki) [1937] HCA 82 ; (1937) 58 CLR 618 at 630-631


case_text: A law of a State will be inconsistent with a law of the Commonwealth: • where simultaneous obedience to both laws is impossible: Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2 ; (1968) 117 CLR 253 at 258-259; • where one law takes away a right, power or authority conferred by the other law: Botany Municipal Council v Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 464; • where the State law would alter, impair or detract from the operation of the Commonwealth law or the exercise of a power under the Commonwealth law: Telstra Corporation v Worthing [1999] HCA 12 ; (1999) 197 CLR 61 at 76, Victoria v Commonwealth (The Kakariki) [1937] HCA 82 ; (1937) 58 CLR 618 at 630-631, APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 219 ALR 403 at [41] - [45] ; and • where a law of a State enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively: Commonwealth v Western Australia (1999) 196 CLR 302 at [55]; Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at 465-466; Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483. 97 The present case is the polar opposite of the kind of situation dealt with in Australian Mutual Provident Society v Goulden [1986] HCA 24 ; (1986) 160 CLR 330, discussed in APLA at [42]-[43]. In Goulden the High Court held that the Life Insurance Act 1945 (Cth) made detailed provision for supervising and regulating the statutory funds of life insurers, including the classification of risks and the setting of premiums. It would "alter, impair or detract from" the Commonwealth scheme if a registered life company were prevented by State anti-discrimination legislation from classifying different risks differently or for setting different premiums for different risks. In the present case, there is no intention manifested by the Air Force Act or the Regulations to create a scheme to deal exclusively within the AAFC with discriminatory conduct involving cadets. As was submitted by the second respondent, the Manual , far from being a comprehensive code, is predicated on the continuing operation and availability of State legal regimes as part of a bed of underlying law.


case_title: Commonwealth v Western Australia (1999) 196 CLR 302 at [55]


case_title: Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at 465-466


case_text: In The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34 ; (1977) 137 CLR 545 at 563 Mason J said: "...a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with the Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law." 95 The present case, in my opinion, is an example of the principle of which Mason J speaks. The applicants' focus on s 8(9) of the Air Force Act draws particular attention to the Manual , issued by the Chief of Air Force in the course of exercising his statutory power and duty to administer the AAFC. The exercise of that power and duty is of course subject, amongst other things, to the Cadet Forces Regulations . But the Regulations themselves, relevantly for present purposes, do not go beyond the specific grounds available for discharge and the procedure to be followed in relation thereto. Plainly the legislators, including those who made the Regulations , contemplated that the vast bulk of other administrative provisions essential for the conduct of the AAFC would be left to the Chief of Air Force in the exercise of his power and duty under s 8(9). 96 The Manual , as has been seen, is replete with express references to State authorities and State laws (and also Commonwealth authorities, the Ombudsman and the Human Rights and Equal Opportunity Commission, entirely unconnected with the Air Force). This is hardly surprising. Cadets are not members of the Australian Defence Force. Although they engage in activities and training of a military kind, they do not undertake the obligations and restrictions of military life. Since cadets may be thirteen or even younger, children in the most literal sense, the AAFC is, as is said in Ch 19 par 6 of the Manual, in loco parentis with respect to those who are minors. Discrimination, sexual harassment and like conduct have only become the subject of legislative attention in the last few decades. It can give rise to difficult and delicate problems, especially where children and young people are concerned in activities with older instructors. It is not an area in which the military is perceived to have any special expertise.


case_text: The present case is the polar opposite of the kind of situation dealt with in Australian Mutual Provident Society v Goulden [1986] HCA 24 ; (1986) 160 CLR 330, discussed in APLA at [42]-[43]. In Goulden the High Court held that the Life Insurance Act 1945 (Cth) made detailed provision for supervising and regulating the statutory funds of life insurers, including the classification of risks and the setting of premiums. It would "alter, impair or detract from" the Commonwealth scheme if a registered life company were prevented by State anti-discrimination legislation from classifying different risks differently or for setting different premiums for different risks. In the present case, there is no intention manifested by the Air Force Act or the Regulations to create a scheme to deal exclusively within the AAFC with discriminatory conduct involving cadets. As was submitted by the second respondent, the Manual , far from being a comprehensive code, is predicated on the continuing operation and availability of State legal regimes as part of a bed of underlying law.


case_outcome: distinguished

case_text: The applicants relied on Dao v Australian Postal Commission [1987] HCA 13 ; (1987) 162 CLR 317. Section 42(1) of the Postal Services Act 1975 (Cth) gave the Commission power to appoint persons as officers for the purposes of the Act. Section 42(2) provided that a person should not be appointed unless the Commission was satisfied, after the person had undergone a medical examination required by the Commission, as to his health and physical fitness and that he possessed such educational qualifications, or met such other requirements (if any) as were required by the Commission. The Commission dismissed Ms Dao and the other appellant from temporary employment, and refused them permanent employment, because in their medical examinations they failed to attain a specified minimum body weight determined by reference to their height and sex according to a scale prepared and used by the Commonwealth Department of Health. The Commission determined on this basis that they did not possess the standard of physical fitness required. The appellants complained before the New South Wales Equal Opportunity Tribunal that they had been discriminated against on the ground of their sex, contrary to s 25(1) of the Anti-Discrimination Act 1977 (NSW). The High Court held that the ss 25 and 113 of the State Act (which empowered the Tribunal to award damages and reinstatement) would result in "a clear usurpation ... of the responsibility resting on the Commission under the Commonwealth Act" and were "clearly in collision with s 42 ... and must therefore, by force of s 109 of the Constitution , give way." (at 335). Their Honours cited the statement of Mason J in Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 260: "If, according to the true construction of the Commonwealth law, the right is absolute, then inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3 ; (1965) 113 CLR 54, where the permission for which Commonwealth law provided was neither absolute nor comprehensive. (at p260)."


case_text: The applicants relied on Dao v Australian Postal Commission [1987] HCA 13 ; (1987) 162 CLR 317. Section 42(1) of the Postal Services Act 1975 (Cth) gave the Commission power to appoint persons as officers for the purposes of the Act. Section 42(2) provided that a person should not be appointed unless the Commission was satisfied, after the person had undergone a medical examination required by the Commission, as to his health and physical fitness and that he possessed such educational qualifications, or met such other requirements (if any) as were required by the Commission. The Commission dismissed Ms Dao and the other appellant from temporary employment, and refused them permanent employment, because in their medical examinations they failed to attain a specified minimum body weight determined by reference to their height and sex according to a scale prepared and used by the Commonwealth Department of Health. The Commission determined on this basis that they did not possess the standard of physical fitness required. The appellants complained before the New South Wales Equal Opportunity Tribunal that they had been discriminated against on the ground of their sex, contrary to s 25(1) of the Anti-Discrimination Act 1977 (NSW). The High Court held that the ss 25 and 113 of the State Act (which empowered the Tribunal to award damages and reinstatement) would result in "a clear usurpation ... of the responsibility resting on the Commission under the Commonwealth Act" and were "clearly in collision with s 42 ... and must therefore, by force of s 109 of the Constitution , give way." (at 335). Their Honours cited the statement of Mason J in Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 260: "If, according to the true construction of the Commonwealth law, the right is absolute, then inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3 ; (1965) 113 CLR 54, where the permission for which Commonwealth law provided was neither absolute nor comprehensive. (at p260)." 99 If the present case were concerned with a complaint under the Anti-Discrimination Act about the discharge of a cadet under reg 14 (2) (a), (b) or (c) it might be said that there was a direct collision between State and Commonwealth law of the kind that occurred in Dao . However, Ms Campbell's case is not directed at any exercise of the power of discharge. It does not trespass on that confined area of Commonwealth statutory power. By stipulating the grounds on which, and the procedure by which, cadets may be discharged the Commonwealth did not evince an intention to exclude generally the operation of a Tasmanian law outlawing discriminatory conduct in the areas of activity specified in s 22(1) , and particularly education and training; cf the discussion of Wardley in Dao at 336. 100 In any case, it is difficult to see how Ms Campbell's complaint on her own behalf is affected by any provision of the Air Force Act or the Cadet Forces Regulations .


case_title: Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3 ; (1965) 113 CLR 54


case_text: The applicants submitted that the Anti-Discrimination Act infringed the Commonwealth's right to determine the identity of persons employed by the Commonwealth, in the same way as, conversely, Commonwealth legislation cannot determine the number and identity and terms of employment of State employees, this being critical to the capacity of a State to function: Re Australian Education Union [1994] HCA 26 ; (1995) 184 CLR 188.


case_text: There is a distinction between, on the one hand, the capacities of the Crown in the right of the Commonwealth and, on the other hand, the exercise of those capacities. State legislation cannot modify the nature of the executive power vested in the Crown in the right of the Commonwealth but it can regulate activities in which the Crown may engage in exercise of those activities. The distinction is discussed by Dawson, Toohey and Gaudron JJ in Henderson at 438-448. Their Honours noted at 444 that the laws of the land are not confined to the laws of the Commonwealth but include the common law and the statute law in force in each of the States. Thus in Pirrie v McFarlane [1925] HCA 30 ; (1925) 36 CLR 170 a person acting in the course of his duties as a member of the RAAF was held to be bound by the provisions of a Victorian Act requiring him to hold a driver's licence when driving a vehicle on a public highway. 103 The present case is concerned with the application of a Tasmanian statute proscribing discriminatory conduct in that State in various areas of activity, including education and training. It is consistent with similar beneficial legislation in other States and Territories and in the Commonwealth itself (which explicitly leaves open resort to State and Territory legislation: Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 4(1)). The executive capacity of the Commonwealth will not be impaired by agents such as Mr Smith being required to conduct themselves in accordance with the Anti-Discrimination Act , along with other Tasmanian laws, as the Manual recognises. Certainly this is so in the absence of any express Commonwealth law to the contrary: cf Pirrie at 183. 104 The Anti-Discrimination Act applies to the Commonwealth and its agents. The Act authorises complaints where the person discriminated against has died. Ms Campbell has an arguable complaint in her own right of discrimination contrary to the Act. In conferring on the Anti-Discrimination Tribunal jurisdiction to adjudicate complaints against the Commonwealth the Act does not breach Ch III of the Constitution . The Act is not inconsistent with the Air Force Act or the Cadet Forces Regulations within the meaning of s 109 of the Constitution . The Act does not impair the capacities of the Commonwealth Executive. 105 There will be orders that the application be dismissed and that the applicants pay the respondents' costs, including reserved costs. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 9 February 2006 Counsel for the Applicants: Peter Hanks QC, Kate Eastman and Stephen Donaghue Solicitors for the Applicant: Phillips Fox Counsel for the Second Respondent: Stephen Estcourt QC, Duncan Kerr SC and Greg Barns Solicitors for the Second Respondent: Simmons Wolfgagen Counsel for the State of Tasmania intervening Solicitor for the State of Tasmania Paul Turner Director of Public Prosecutions Dates of Hearing: 6, 7, 8 December 2005 Date of Judgment: 9 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/60.html


case_text: The object of the Act, as set out in s 3 , is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by making available information and giving access to information about the operations of departments and public authorities, including the ABC. This right is limited by exceptions and exemptions necessary for the protection of essential public interests (s 3(1)(b) ; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 per Lockhart J at 438). Any discretion conferred by the Act is to be exercised as far as possible so as to facilitate and promote the disclosure of information (s 3(2)). 4 Document is defined in s 4(1) and relevantly includes: '(a) any of, or any part of any of, the following things: (i) any paper or other material on which there is writing; ... (iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; (v) any article on which information has been stored or recorded, either mechanically or electronically; (vi) any other record of information; or (b) any copy, reproduction or duplicate of such a thing; or (c) any part of such a copy, reproduction or duplicate' "Program material" is not defined in the Act. 5 There is no dispute that the materials sought by UTS are "documents" within s 4(1) or that the words "program material" also describe documents within s 4(1). The documents sought are set out in Annexure 1 to these reasons. For the purposes of this appeal the parties have approached the documents as if they constitute a single category. No distinction is drawn by the parties between documents created before broadcasting and documents created after broadcasting. The documents concern complaints about specific ABC programs and the ABC's coverage of the Middle East and fall into two broad categories: • correspondence with complainants; and • internal files and correspondence, board minutes, investigation files and reports and documents in relation to the complaints.


case_text: The ABC did not seek to argue that the documents sought are "program material" per se . Rather, the ABC's submissions support a construction of the expression that would include all documents that relate to program material, including documents created before or after the broadcast of the program and any correspondence about program material. The ABC's submissions are to the effect that the exemption is "in relation to documents in relation to its program material". The ABC then relies on the principle that "in relation to" is an expression of wide and general import ( Fountain v Alexander [1982] HCA 16 ; (1982) 150 CLR 615 at 629 per Mason J) and covers all of the documents sought, which are said to exist only because of and arise directly from, the broadcast of ABC program material. The ABC draws a distinction between documents related to its program material, which it says are exempt and documents related to its administrative function, which are outside the scope of the expression.


case_text: While in some contexts "in respect of" may have a wider meaning than "in relation to" ( Smith v Federal Commissioner of Taxation [1987] HCA 48 ; (1987) 164 CLR 513 at 533 per Toohey J; citing Nowegijick v R (1983) 144 DLR (3d) 193 at 200)), in the context of the Schedule "in respect of" has a narrower meaning. That is, "in respect of" is used in the sense of "with reference to" (the Macquarie Dictionary , 4 th ed, 2005 defines "with (or in) respect to" to mean ' in relation to or reference to ', while the Shorter Oxford Dictionary , 5 th ed, 2002 definition includes '[ r ] elation, connection, reference, regard '). A sufficient or material connection or relationship is required when "in respect of" is used, rather than a mere direct or indirect relationship when "in relation to" is used ( Harris v Commissioner of Taxation [2002] FCAFC 226 ; (2002) 125 FCR 46 at [68] [69]). A further restriction on the exemption is thereby introduced for those agencies other than the ABC and SBS.


case_outcome: considered

case_title: Keane v Australian Broadcasting Corporation (Unreported, Administrative Appeals Tribunal, 27 May 2004, W93/182 AAT No. 9583)

case_text: UTS ultimately adopted a position that the exemption is only for program material where program material means the recordings and tapes, the "sights and sounds" that are broadcast by television or radio. The difficulty with this position was illustrated when UTS accepted, during the course of submissions, that the following either were, or could be, program material: • films or tapes which have or have not been broadcast; • draft tapes and draft films; • material which is ' part of the production process for the film or the tape recording '; • the development proposal and six treatments found to be ' documents relating to program material ' and therefore exempt in the Tribunal's earlier decision in Keane v Australian Broadcasting Corporation at [7] (Unreported, Administrative Appeals Tribunal, 27 May 2004, W93/182 AAT No. 9583); • scripts; and • technical directions given by a director for the lighting on a particular program. 21 Both parties rely on the reasoning in Keane which has not been the subject of relevant further comment by a Court or the Tribunal. 22 The Tribunal expressed doubt about the approach in Keane where "program" and "material" were defined separately. It considered "program material" to be a composite term but did not explain what that composite term encompassed. UTS supported that construction. The Tribunal did accept, however, the reasoning in Keane that the Schedule is not limited to program material and held that it encompassed documents relating to program material in that it extended the exemption to ' matters such as the intellectual property of [the ABC] in a program ' (at [32]). No basis for this conclusion was given, nor was an attempt made to explain what criteria were applied. To the extent that this formed part of the reasons of the Tribunal, neither party has supported such a limitation and there is no basis for it. The Tribunal stated that it did not ' see an exemption "in relation to program material" as extending as far as a complaint regarding material in a program and the treatment given to that complaint by [the ABC]' (at [33]) and categorised all of the documents sought in that category. 23 The Tribunal in Keane considered dictionary definitions of "program" and "material". Relevantly, the Macquarie Dictionary defines "program" when used in radio and television as ' a particular item or production '; the Shorter Oxford Dictionary defines program(me) when used in broadcasting as '[a] broadcast presentation treated as a single item for scheduling purposes, being broadcast between stated times and without interruption except perhaps for news bulletins or advertisements '. 24 The meaning of "material" in the Macquarie Dictionary encompasses different concepts, including: ' the substance or substances of which a thing is made or composed '; ' any constituent element of a thing '; ' anything serving as crude or raw matter for working upon or developing '; and ' information, ideas, or the like on which a report, thesis, etc, is based '. In the Shorter Oxford Dictionary , it means relevantly '[o] f or pertaining to matter or substance '; '[f] orming the material or substance of a thing ' ; '[ t ] he matter of which a thing is or may be made ' ; and also '[i] nformation, evidence, ideas, etc, for use in writing a book or script, drawing a conclusion, etc '. 25 The Tribunal in Keane found that documents which ' constitute vital steps in the production of a television production program ' and ' make up important elements in that process ' are within the exemption, that is not only is program material exempted but also documents relating to program material (at [7]). It drew a distinction between such documents and a letter which related to a change in script writers which was not exempt. 26 UTS submits that, in effect, the exemption is limited by the meaning of "program material" and that this extends only to the sights and sounds. The ABC made no submission as to the meaning of "program material", other than that it ought not be limited to documents created before a program is broadcast. I do not accept that program material is restricted to films or tapes themselves. In my opinion, it extends at least to the content of the films and tapes. It has not been disputed that the documents sought relate to the content of ABC programs. Accordingly, it is not necessary for me to determine the breadth of the application of "program material". 27 UTS sought to rely on extrinsic material to assist in determining the meaning of "program material" and "in relation to program material". The Senate Standing Committee on Constitutional and Legal Affairs, in its Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (Parliamentary Paper No 272/1979) ('the Report')) noted that the Bill, expressed to be concerned with freedom of information, refers generally not to information but to documents.


case_title: Nowegijick v R (1983) 144 DLR (3d) 193


case_text: UTS submits that "in relation to" in the context of the Schedule equates to "for" and that the exemption is only for documents which are ABC program material. UTS's submissions support a construction that limits the expression to apply only to the "sights and sounds" of a program: the tapes or recordings. UTS does not submit that the exemption extends only to documents that fall within that aspect of the definition of "document" in s 4(a) that refers to "material", that is s 4(a)(iv). Rather, UTS relies on an amalgamation of the definition of "program" in the Broadcasting Services Act 1992 (Cth) (which of course post-dates the Act) and the construction of the expression "Australian content of programs" by Brennan CJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [22] to submit that program material is limited to ' the sights and sounds which are capable of transmission to an audience for the purpose of education or informing or even for advertising or sponsorship '. A script for a program or instructions for the lighting for recording purposes are not, on this basis, included. UTS submits that all of the documents sought are about program material and, not being documents which are program material, do not fall within the exemption. UTS does not dispute the breadth of the expression "in relation to" but submits that, construed in context, the limited meaning of "program material" means that "in relation to" extends only to other versions of the program material itself, such as to edited tapes or recordings. 8 For agencies other than the Special Broadcasting Service Corporation ('SBS') and the ABC, the word "document" is repeated in the Schedule: ' in relation to documents ' in respect of certain activities. For the SBS and the ABC, the entry is ' in relation to its program material '. UTS contends that the class of exempt documents for the ABC and SBS is defined by reference to nature and content and not to an activity. Where the exemption is for documents in respect of an activity, as for other agencies in the Schedule, it extends to documents received or brought into existence in the course of, or for the purposes of, the carrying on of that activity (s 7(4)). By contrast, UTS submits that where the exemption is defined by reference to the nature and content of the particular documents, it should be read as an exemption "for" those particular documents. 9 Section 7(2) provides that the bodies specified in the Schedule are exempt ' in relation to the documents referred to in that [Schedule]'. It follows that the subject matter of the Schedule is documents that come within the definition in s 4(1). The Schedule then limits the documents by category. If there were simply categories of documents listed, such as "scripts for programs", the exemption would be in relation to scripts for programs.


case_text: The parties only referred to one case where the Schedule was discussed ( Rivera v Australian Broadcasting Corporation [2005] FCA 661 ; (2005) 144 FCR 334). While Rivera concerned the Privacy Act 1988 (Cth), it did refer to the Schedule. The observation of Hill J at [38], that the ABC is exempt under the Act ' in respect of "documents" in relation to its program material ', is consistent with these reasons.


case_text: UTS points out that the entry in the Schedule for the ABC does not say "documents in respect of its program material". That is correct. Nor does it say "for its program material". The words ' in relation to ' are used. The width of that expression is determined by the context in which it appears and a relevant connection is required with the subject ( Secretary Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 383). 16 Putting together s 7(2) and the Schedule, for agencies other than the ABC and SBS, the exemption is: 'in relation to the documents' (s 7(2)) 'in relation to documents in respect of [the activity] (the Schedule) '. For the ABC and the SBS, the exemption is: 'in relation to the documents' (s 7(2)) 'in relation to its program material (the Schedule)' . 17 It may well be that the repetition of ' in relation to documents ' was unnecessary for the other agencies, as it was for the ABC. However, the repeated use of "in relation to" reinforces an intention to exempt not only the category of documents specified but also documents that relate to that category. Even if, as submitted by UTS, "in relation to" can mean "for", it is unlikely that it was intended to carry that restricted meaning both in s 7(2) and in the Schedule. It may be that, reading s 7(2) and the Schedule together, the exemption is "for documents in relation to" the category specified but I do not accept that the intention was to exempt only the specified category itself.


case_title: Smith v Federal Commissioner of Taxation [1987] HCA 48 ; (1987) 164 CLR 513


case_text: The applicant's case is, shortly, that to practice her religion without being persecuted because of her membership of an unregistered church, she is required to take steps to avoid harm by meeting in small groups. Reliance in this is placed on the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 and especially the following observations of McHugh and Kirby JJ at [43]: " The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of particular social groups. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and the relevant persecutory conduct is the harm that will be inflicted ... To determine the issue of a real chance without determining whether the modified conduct was influenced by the threat of harm was to fail to consider that issue properly " : emphasis added; and at [50]: "Insofar as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed."


case_text: The short answer to this is that it attributes to the Tribunal a requirement of the applicant that is not present in its reasons. It did not decide the case on the basis that it was reasonable to expect that the applicant would, or would have to continue to, take reasonable action to avoid harm. Having rejected on credibility grounds that the applicant's group subdivided itself on a number of occasions to make it "less noticeable to the police", there was no claim before the Tribunal that the applicant had modified her behaviour in any way so as to practise her religion without risk of persecution. The applicant's claim was that she was a member of a small group and was persecuted as such. While accepting her small group membership, the Tribunal rejected the claim to persecution, relying both on the unreliability of the applicant's evidence and on the absence of country information relating to the targeting of small Christian groups such as the applicant's. The Tribunal in other words, did not ask itself a wrong question. It addressed the case advanced by the applicant and it considered, in light of what it accepted of that case, whether she had a well-founded fear of persecution if she returned to China. It did not ask whether it was possible for the applicant to live in China in such a way that as to avoid harm. Rather, it concluded that, in the manner in which she actually practised her religion, she would not put herself at risk of persecution from the Chinese authorities: cf NABD of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [151] and [161] ff. 7 I will order that the application be dismissed and that the applicant pay the costs of the first respondent. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 10 February 2006 Counsel for the Applicant: Mr Keen Solicitor for the Applicant: Refugee Advocacy Service of South Australia Counsel for the Respondent: Mr Roder Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2006 Date of Judgment: 10 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/74.html


case_title: Abebe v Commonwealth (1999) 197 CLR

case_text: Mr Bickford for the respondents submitted in summary as follows: • the grounds of review sought to be advanced by the appellant are not open on a matter of this nature and in any event, there is no basis for any one of the grounds sought to be advanced by the appellant • the scope of jurisdictional error is very limited and a matter can easily fall out of focus when one spends too much time analysing the Tribunals reasons • it is not finally settled whether or not a decision which is unreasonable in the sense explained in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 is amenable to review for jurisdictional error • however, there is clear Full Court authority that states that a lack of logic in a Tribunal's reasoning does not, of itself, give rise to an error of law or jurisdictional error: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 • in any event, the decision of the Tribunal was not unreasonable in the Wednesbury sense or in the sense that it was so irrational or illogical and not based on findings or inferences of fact supported by logical grounds. Even if these grounds gave rise to jurisdictional error they are not made out in this case • the argument that a finding unsupported by evidence amounts to an illogical finding is not supported by authorities: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 • the findings made by the Tribunal with respect to the appellant's United States navy service and how the Iranian authorities might view it were reasonably open to it and the Tribunal had regard to all the available evidence in forming its conclusions • the Tribunal clearly understood the test as to whether the combination of factors in the appellant's case (including his United States navy service) would give rise to a well-founded fear of persecution for a Convention reason. Further, the Tribunal stated the test correctly and applied the tests to the facts as found • it would be a wrong approach for this court, under the guise of attacking the Tribunal's reasons as being unreasonable or in some sense giving rise to jurisdictional error, to find that this court would not have reached the same conclusion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 • the Tribunal applied the correct test with respect to whether there was a "real chance" of the appellant being persecuted and there is no basis for any contention to the contrary • the Tribunal dealt with the appellant's claims of persecution based on religion, and the Tribunal's findings that there was not a real chance that he faced persecution by reason of his religion in the reasonably foreseeable future was reasonably open on the available evidence. The Tribunal's findings in this regard were findings of fact and not reviewable by this Court • inevitably there will not be "perfect" evidence before the Tribunal in cases of this nature. The findings the Tribunal made were open to it on the evidence • even if the Tribunal's findings were against the evidence and the weight of the evidence, such a result does not give rise to an error of law • there is no basis for the assertion that the Tribunal failed to take into account relevant evidence. 32 As a general proposition, it is true that: • it is for the appellant to advance whatever evidence or argument he wishes to advance in support of his claim ( Abebe v Commonwealth (1999) 197 CLR at 576, re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] ), and • as made clear by the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , a finding of fact will only go to jurisdiction if that finding was not open on the evidence.


case_outcome: followed

case_text: In view of my decision with respect to evidence in this case, it is not strictly necessary for me to consider the alternative issues raised by the appellant with respect to Wednesbury unreasonableness and irrationality and want of logic of the Tribunal's decision. However, I note the findings of his Honour below that reasoning of the Tribunal was neither illogical nor irrational and, having reviewed the decision of the Tribunal, consider that there is no error in his Honour's findings in relation to these contentions. In any event, these grounds do not appear to support claims of jurisdictional defect in terms of Australian law. In particular, I note the decision of the Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 with respect to Wednesbury unreasonableness, and the decisions of the High Court in Bond 170 CLR (particularly per Mason CJ at 356 with whom, on this point, Brennan, Toohey and Gaudron JJ agreed) and the Full Court in VWST [2004] FCAFC 286 that want of logic does not form a valid basis of judicial review.


case_text: At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16.


case_text: Mr Estcourt QC for the appellant submitted in summary as follows: • the conclusion of the Tribunal that the appellant did not have a well-founded fear of persecution because: o he was only an apostate and not a Christian proslytizer o he had not criticised the Islamic Revolutionary government since he first went to live in the United States 25 years ago o he only reached the "lowly" rank of airman in the United States Navy and therefore he would not be a person the authorities in Iran would have any interest in punishing was " Wednesbury unreasonable" and both irrational and illogical • it was illogical in the extreme, perverse and manifestly wrong in the sense discussed by Young J in VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 to conclude that the Iranian authorities would examine the appellants Navy service records and satisfy themselves that they did not disclose that the appellant was any threat to Iran • the Tribunals' conclusion in relation to the assertion that the appellant "can inform them that he was never properly rewarded for his study efforts in the navy" and other quantitative aspects of the appellants United States Navy serve was capricious, perverse and disclose manifest error going to jurisdiction • it was not relevant how long the appellant served in the United States Navy, or the level of his rank, or whether he felt sufficiently rewarded or appreciated by the United States Navy to whether he would be of interest to the Iranian authorities. What would be of moment was the authorities' perception of the political conduct of an Iranian opponent of the current government who evaded military conscription in the service of his own country and fled to and joined the armed services of Iran's enemy • the Tribunal's unreasonable approach failed to appreciate and decide upon the full import of the evidence before it concerning the position as to Iran • given that the Tribunal found that the appellant would come to the attention of the authorities in Iran and that the legal sanction for apostasy is the death penalty, and given the appellants overall history, the chance of him suffering serious persecution was not one which could be discounted as "farfetched" "remote" or "insubstantial" • the Tribunal failed to take into account the very relevant considerations of arbitrary arrest, imprisonment of people solely on account of their beliefs, torture and ill-treatment of detainees, the refusal of Iran to adopt laws against torture and the role of "morality forces" in attacking opponents of the regime to determine whether the appellant (who has 21 years of residence in the United States and served in the United States Navy) has a well-founded fear of persecution • the Tribunal accepted the appellant's characterisation of the United States as Iran's "sworn enemy" • to have concluded otherwise than that the appellant had more than a "remote", "insubstantial" or "farfetched" chance of a threat to his liberty or physical harassment or ill-treatment at the hands of the Iranian authorities was so totally unreasonable that no reasonable Tribunal could arrive at such a conclusion and it is an irrational and illogical conclusion not based on any evidence or findings or inferences of fact supported by logical grounds. 18 Mr Bickford for the respondents submitted in summary as follows: • the grounds of review sought to be advanced by the appellant are not open on a matter of this nature and in any event, there is no basis for any one of the grounds sought to be advanced by the appellant • the scope of jurisdictional error is very limited and a matter can easily fall out of focus when one spends too much time analysing the Tribunals reasons • it is not finally settled whether or not a decision which is unreasonable in the sense explained in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 is amenable to review for jurisdictional error • however, there is clear Full Court authority that states that a lack of logic in a Tribunal's reasoning does not, of itself, give rise to an error of law or jurisdictional error: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 • in any event, the decision of the Tribunal was not unreasonable in the Wednesbury sense or in the sense that it was so irrational or illogical and not based on findings or inferences of fact supported by logical grounds. Even if these grounds gave rise to jurisdictional error they are not made out in this case • the argument that a finding unsupported by evidence amounts to an illogical finding is not supported by authorities: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 • the findings made by the Tribunal with respect to the appellant's United States navy service and how the Iranian authorities might view it were reasonably open to it and the Tribunal had regard to all the available evidence in forming its conclusions • the Tribunal clearly understood the test as to whether the combination of factors in the appellant's case (including his United States navy service) would give rise to a well-founded fear of persecution for a Convention reason. Further, the Tribunal stated the test correctly and applied the tests to the facts as found • it would be a wrong approach for this court, under the guise of attacking the Tribunal's reasons as being unreasonable or in some sense giving rise to jurisdictional error, to find that this court would not have reached the same conclusion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 • the Tribunal applied the correct test with respect to whether there was a "real chance" of the appellant being persecuted and there is no basis for any contention to the contrary • the Tribunal dealt with the appellant's claims of persecution based on religion, and the Tribunal's findings that there was not a real chance that he faced persecution by reason of his religion in the reasonably foreseeable future was reasonably open on the available evidence. The Tribunal's findings in this regard were findings of fact and not reviewable by this Court • inevitably there will not be "perfect" evidence before the Tribunal in cases of this nature. The findings the Tribunal made were open to it on the evidence • even if the Tribunal's findings were against the evidence and the weight of the evidence, such a result does not give rise to an error of law • there is no basis for the assertion that the Tribunal failed to take into account relevant evidence. 19 It is not in dispute between the parties that: • the Court is entitled to set aside a purported decision of the Tribunal if the Tribunal has committed jurisdictional error • the scope of jurisdictional error is not finally settled • it is not finally settled whether or not a decision which is unreasonable in the sense explained in Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 is amenable to review for jurisdictional error • the appellant in this case has claimed a well-founded fear of persecution for a Convention reason. 20 At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. 34 In view of my decision with respect to evidence in this case, it is not strictly necessary for me to consider the alternative issues raised by the appellant with respect to Wednesbury unreasonableness and irrationality and want of logic of the Tribunal's decision. However, I note the findings of his Honour below that reasoning of the Tribunal was neither illogical nor irrational and, having reviewed the decision of the Tribunal, consider that there is no error in his Honour's findings in relation to these contentions. In any event, these grounds do not appear to support claims of jurisdictional defect in terms of Australian law. In particular, I note the decision of the Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 with respect to Wednesbury unreasonableness, and the decisions of the High Court in Bond 170 CLR (particularly per Mason CJ at 356 with whom, on this point, Brennan, Toohey and Gaudron JJ agreed) and the Full Court in VWST [2004] FCAFC 286 that want of logic does not form a valid basis of judicial review.


case_text: An administrative decision made on the basis of no evidence is invalid: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473 per Barwick CJ at 479-480, Gibbs J at 483, Stephen J at 485, Murphy J at 488; Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12 at [39] - [41] . This may be contrasted with a decision against the evidence or the weight of the evidence, which does not form the basis of jurisdictional error: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601. 34 In view of my decision with respect to evidence in this case, it is not strictly necessary for me to consider the alternative issues raised by the appellant with respect to Wednesbury unreasonableness and irrationality and want of logic of the Tribunal's decision. However, I note the findings of his Honour below that reasoning of the Tribunal was neither illogical nor irrational and, having reviewed the decision of the Tribunal, consider that there is no error in his Honour's findings in relation to these contentions. In any event, these grounds do not appear to support claims of jurisdictional defect in terms of Australian law. In particular, I note the decision of the Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 with respect to Wednesbury unreasonableness, and the decisions of the High Court in Bond 170 CLR (particularly per Mason CJ at 356 with whom, on this point, Brennan, Toohey and Gaudron JJ agreed) and the Full Court in VWST [2004] FCAFC 286 that want of logic does not form a valid basis of judicial review.


case_text: An administrative decision made on the basis of no evidence is invalid: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473 per Barwick CJ at 479-480, Gibbs J at 483, Stephen J at 485, Murphy J at 488; Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 358; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12 at [39] - [41] . This may be contrasted with a decision against the evidence or the weight of the evidence, which does not form the basis of jurisdictional error: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.


case_text: Mr Bickford for the respondents submitted in summary as follows: • the grounds of review sought to be advanced by the appellant are not open on a matter of this nature and in any event, there is no basis for any one of the grounds sought to be advanced by the appellant • the scope of jurisdictional error is very limited and a matter can easily fall out of focus when one spends too much time analysing the Tribunals reasons • it is not finally settled whether or not a decision which is unreasonable in the sense explained in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 is amenable to review for jurisdictional error • however, there is clear Full Court authority that states that a lack of logic in a Tribunal's reasoning does not, of itself, give rise to an error of law or jurisdictional error: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 • in any event, the decision of the Tribunal was not unreasonable in the Wednesbury sense or in the sense that it was so irrational or illogical and not based on findings or inferences of fact supported by logical grounds. Even if these grounds gave rise to jurisdictional error they are not made out in this case • the argument that a finding unsupported by evidence amounts to an illogical finding is not supported by authorities: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 • the findings made by the Tribunal with respect to the appellant's United States navy service and how the Iranian authorities might view it were reasonably open to it and the Tribunal had regard to all the available evidence in forming its conclusions • the Tribunal clearly understood the test as to whether the combination of factors in the appellant's case (including his United States navy service) would give rise to a well-founded fear of persecution for a Convention reason. Further, the Tribunal stated the test correctly and applied the tests to the facts as found • it would be a wrong approach for this court, under the guise of attacking the Tribunal's reasons as being unreasonable or in some sense giving rise to jurisdictional error, to find that this court would not have reached the same conclusion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 • the Tribunal applied the correct test with respect to whether there was a "real chance" of the appellant being persecuted and there is no basis for any contention to the contrary • the Tribunal dealt with the appellant's claims of persecution based on religion, and the Tribunal's findings that there was not a real chance that he faced persecution by reason of his religion in the reasonably foreseeable future was reasonably open on the available evidence. The Tribunal's findings in this regard were findings of fact and not reviewable by this Court • inevitably there will not be "perfect" evidence before the Tribunal in cases of this nature. The findings the Tribunal made were open to it on the evidence • even if the Tribunal's findings were against the evidence and the weight of the evidence, such a result does not give rise to an error of law • there is no basis for the assertion that the Tribunal failed to take into account relevant evidence.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; [2004] 207 ALR 12


case_title: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235


case_text: As a general proposition, it is true that: • it is for the appellant to advance whatever evidence or argument he wishes to advance in support of his claim ( Abebe v Commonwealth (1999) 197 CLR at 576, re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] ), and • as made clear by the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , a finding of fact will only go to jurisdiction if that finding was not open on the evidence.


case_text: At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. 32 As a general proposition, it is true that: • it is for the appellant to advance whatever evidence or argument he wishes to advance in support of his claim ( Abebe v Commonwealth (1999) 197 CLR at 576, re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] ), and • as made clear by the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , a finding of fact will only go to jurisdiction if that finding was not open on the evidence.


case_text: At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. 23 It is clear that in reaching its decision, the Tribunal is not limited to the evidence that is formally put before it: s 353(2) Migration Act . As observed by the Full Court in SFGB [2003] FCAFC 231 at [21] : "Subject to the other provisions of the Act, including the implied and express requirements of procedural fairness, the Tribunal can inform itself as it thinks fit, including acting on information that is 'public'. Nor should it be forgotten in this context that in the course of their duties Tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world. Within the limits imposed by the Act itself there is nothing to prevent members from using this information." 24 In this case the Tribunal considered both information provided by the appellant, and "public" information. In summary, this information was: • that the appellant "has been out of the country for 26 years, mostly living in a Christian country that is Iran's sworn enemy; he has worked in the United States Navy and will be imputed to be opposed to Iran for that reason; he has publicly supported the Shah and criticized the government that replaced him; he has avoided military service; and he has become a Christian" • the appellant held the rank of "airman" in the United States Navy, that his role was to inspect aircraft, and that he had a low security clearance • that active monarchists who are associated with parties that wield influence outside Iran might encounter difficulties if they returned to Iran. The Tribunal noted a document entitled Final Report (Iran) published by the UNHCR and the Austrian Centre for Country of Origin Asylum Research and Documentation (ACCORD) at the seventh European country of origin information seminar in Berlin (11-12 June 2001) • the Australian Department of Foreign Affairs and Trade advised on 17 March 2003 that there was no evidence of Iranian authorities actively targeting supporters of the former Shah, although an individual caught handing out pro-monarchist leaflets in Iran would likely be arrested • the UK Home Office report Iran Assessment October 2003 which observed that the current regime in Iran has not in the past nor does it now act against Iranians simply because they or their relatives were members of the Rastakhiz Party, which was established by the Shah in 1975 to run a one-party State. The report also noted that: "There is no evidence of any pattern of action by the regime today against Iranians simply because at one time they were middle-level or low ranking functionaries of the Shah's bureaucracy." • the UK Home Office report Country Assessment Iran, October 2003 which noted that proselytising apostates who commence preaching Christianity are likely to face execution, although there had been no reports of persons being executed on the grounds of conversion from Islam since 1994, and in practice Muslim converts to Christianity may face obstacles such as not being admitted to university or not being issued with a passport. 25 The appellant submits that, in reaching its decision, the Tribunal erred in concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States military service. The appellant draws attention to the findings of the Tribunal that: "It is likely that he will be questioned and his past will be examined and will disclose that his family members were supporters of the Shah, that the Applicant made some critical comments about the government some 25 years ago and that he worked in the USA Navy for more than two years. The Tribunal finds that the authorities will have no interest in punishing him for historical connections to the Shah's regime or for criticising the Revolutionary government when it first came to power, particularly as he has not been politically active or otherwise critical in the intervening 25 years. His service was 13 years ago and he only reached the relatively lowly rank of airman. He voluntarily left after a little more than two years. The Tribunal does not accept the argument that he will be imputed to be an enemy of Iran because he was employed by the Navy. The authorities can examine his service records and question him to satisfy themselves that his service does not disclose he is any threat of Iran. He can inform them that he was never properly rewarded for his study efforts in the Navy. It finds that he does not face a real chance of persecution related to his US Navy service, for that reason alone or in combination with other aspects of his claims..." 26 In particular, the appellant submitted that there was no material before the Tribunal as to how the Iranian authorities might react to the appellant's navy service. Accordingly, the findings of the Tribunal in relation to the view the authorities might take was based on no evidence, and amounted to jurisdictional error. 27 In relation to this issue, at the hearing Mr Bickford for the first respondent submitted: "So the fact that the Tribunal, in making its finding that he was in its view not likely to suffer a real chance of persecution related to his US naval service for that reason alone or in combination with other matters doesn't necessarily attract criticism by way of jurisdictional error simply because there was no direct evidence before the Tribunal as to what would happen if he was placed in that situation. In other words, inevitably in cases of this nature there won't be perfect evidence before the Tribunal. The Tribunal can't know for absolute certain what will happen in the event that this gentleman is returned to Iran and questioned about these matters. It can only make findings based upon the evidence that it does have and based upon its own experience and its own views. That's all it can do. So to say there's no evidence to support a finding that - the actual findings being that he would not be imputed to be an enemy of Iran because he was employed by the Navy, well, that's a finding that's open to them on the evidence that they have. It's not a finding that they must make. They might have gone the other way, but that's their role. It's a fact-finding role and the fact-finding has to be based on the evidence available, which is the evidence offered by the applicant." (TS p 14 ll 27-43)


case_title: Sinclair v Mining Warden at Maryborough [1975] HCA 17 ; [1975] 132 CLR 473


case_text: Mr Estcourt QC for the appellant submitted in summary as follows: • the conclusion of the Tribunal that the appellant did not have a well-founded fear of persecution because: o he was only an apostate and not a Christian proslytizer o he had not criticised the Islamic Revolutionary government since he first went to live in the United States 25 years ago o he only reached the "lowly" rank of airman in the United States Navy and therefore he would not be a person the authorities in Iran would have any interest in punishing was " Wednesbury unreasonable" and both irrational and illogical • it was illogical in the extreme, perverse and manifestly wrong in the sense discussed by Young J in VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 to conclude that the Iranian authorities would examine the appellants Navy service records and satisfy themselves that they did not disclose that the appellant was any threat to Iran • the Tribunals' conclusion in relation to the assertion that the appellant "can inform them that he was never properly rewarded for his study efforts in the navy" and other quantitative aspects of the appellants United States Navy serve was capricious, perverse and disclose manifest error going to jurisdiction • it was not relevant how long the appellant served in the United States Navy, or the level of his rank, or whether he felt sufficiently rewarded or appreciated by the United States Navy to whether he would be of interest to the Iranian authorities. What would be of moment was the authorities' perception of the political conduct of an Iranian opponent of the current government who evaded military conscription in the service of his own country and fled to and joined the armed services of Iran's enemy • the Tribunal's unreasonable approach failed to appreciate and decide upon the full import of the evidence before it concerning the position as to Iran • given that the Tribunal found that the appellant would come to the attention of the authorities in Iran and that the legal sanction for apostasy is the death penalty, and given the appellants overall history, the chance of him suffering serious persecution was not one which could be discounted as "farfetched" "remote" or "insubstantial" • the Tribunal failed to take into account the very relevant considerations of arbitrary arrest, imprisonment of people solely on account of their beliefs, torture and ill-treatment of detainees, the refusal of Iran to adopt laws against torture and the role of "morality forces" in attacking opponents of the regime to determine whether the appellant (who has 21 years of residence in the United States and served in the United States Navy) has a well-founded fear of persecution • the Tribunal accepted the appellant's characterisation of the United States as Iran's "sworn enemy" • to have concluded otherwise than that the appellant had more than a "remote", "insubstantial" or "farfetched" chance of a threat to his liberty or physical harassment or ill-treatment at the hands of the Iranian authorities was so totally unreasonable that no reasonable Tribunal could arrive at such a conclusion and it is an irrational and illogical conclusion not based on any evidence or findings or inferences of fact supported by logical grounds.


case_text: Mr Bickford for the respondents submitted in summary as follows: • the grounds of review sought to be advanced by the appellant are not open on a matter of this nature and in any event, there is no basis for any one of the grounds sought to be advanced by the appellant • the scope of jurisdictional error is very limited and a matter can easily fall out of focus when one spends too much time analysing the Tribunals reasons • it is not finally settled whether or not a decision which is unreasonable in the sense explained in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 is amenable to review for jurisdictional error • however, there is clear Full Court authority that states that a lack of logic in a Tribunal's reasoning does not, of itself, give rise to an error of law or jurisdictional error: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 • in any event, the decision of the Tribunal was not unreasonable in the Wednesbury sense or in the sense that it was so irrational or illogical and not based on findings or inferences of fact supported by logical grounds. Even if these grounds gave rise to jurisdictional error they are not made out in this case • the argument that a finding unsupported by evidence amounts to an illogical finding is not supported by authorities: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 • the findings made by the Tribunal with respect to the appellant's United States navy service and how the Iranian authorities might view it were reasonably open to it and the Tribunal had regard to all the available evidence in forming its conclusions • the Tribunal clearly understood the test as to whether the combination of factors in the appellant's case (including his United States navy service) would give rise to a well-founded fear of persecution for a Convention reason. Further, the Tribunal stated the test correctly and applied the tests to the facts as found • it would be a wrong approach for this court, under the guise of attacking the Tribunal's reasons as being unreasonable or in some sense giving rise to jurisdictional error, to find that this court would not have reached the same conclusion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 • the Tribunal applied the correct test with respect to whether there was a "real chance" of the appellant being persecuted and there is no basis for any contention to the contrary • the Tribunal dealt with the appellant's claims of persecution based on religion, and the Tribunal's findings that there was not a real chance that he faced persecution by reason of his religion in the reasonably foreseeable future was reasonably open on the available evidence. The Tribunal's findings in this regard were findings of fact and not reviewable by this Court • inevitably there will not be "perfect" evidence before the Tribunal in cases of this nature. The findings the Tribunal made were open to it on the evidence • even if the Tribunal's findings were against the evidence and the weight of the evidence, such a result does not give rise to an error of law • there is no basis for the assertion that the Tribunal failed to take into account relevant evidence. 34 In view of my decision with respect to evidence in this case, it is not strictly necessary for me to consider the alternative issues raised by the appellant with respect to Wednesbury unreasonableness and irrationality and want of logic of the Tribunal's decision. However, I note the findings of his Honour below that reasoning of the Tribunal was neither illogical nor irrational and, having reviewed the decision of the Tribunal, consider that there is no error in his Honour's findings in relation to these contentions. In any event, these grounds do not appear to support claims of jurisdictional defect in terms of Australian law. In particular, I note the decision of the Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 with respect to Wednesbury unreasonableness, and the decisions of the High Court in Bond 170 CLR (particularly per Mason CJ at 356 with whom, on this point, Brennan, Toohey and Gaudron JJ agreed) and the Full Court in VWST [2004] FCAFC 286 that want of logic does not form a valid basis of judicial review.


case_outcome: referred to

case_text: rules of natural justice require that a person making a determination as to whether an APS employee has breached the Code of Conduct must be unbiased and free from any reasonable apprehension of bias. A decision-maker will be biased if he or she does not approach the decision-making task entrusted to him or her with an open mind which is open to persuasion one way or the other. If a decision-maker has pre-judged a case so as to be unable or unwilling to decide it impartially, that decision-maker's determination will be affected by actual bias (see per Stone J, with whose reasons Hill J agreed, in Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 ; (2001) 109 FCR 424 at [79] ). The requirement that justice should both be done and be seen to be done is one which reflects the fundamental importance of the principle that a decision-maker determining whether or not the Code of Conduct has been breached be independent and impartial ('unbiased').