case_text: The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 ('S152') at [19]). 34 Where diplomatic or consular protection is available, a person must show, not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness. A claimant's unreasonable refusal to seek the protection of his home authorities would not satisfy the requirements of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [19]). 35 Because it is the primary responsibility of the country of nationality to safeguard fundamental human rights and freedoms, the international responsibility has been described as a form of 'surrogate protection'. 'Protection' in that sense has a broader meaning than the narrower sense in which the term is used in Art 1A(2) but, so long as the two meanings are not confused, it is a concept that is relevant to the interpretation of Art 1A(2) (per Gleeson CJ, Hayne and Heydon JJ in S152 at [20]. See also per Gummow, Hayne and Crennan JJ in SZATV at [20]).


case_outcome: applied

case_text: It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 ('Guo') at 571-2, 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).


case_text: Any inquiry concerning causation arising in an extortion case must allow for the possibility that the extortive activity has a dual character it may be motivated by a personal interest on the perpetrator's part but may also be Convention-related (see Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73 per Finn and Dowsett JJ at [46]-[48]). Where the extortive activity has a dual character, s 91R(1)(a) requires that the Convention reason must be the 'essential and significant reason'.


case_text: In Chen Chi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 ('Chen') at [13] Gleeson CJ, Gaudron, Gummow and Hayne JJ summarised the findings of the Court in Applicant A as follows: '13 It was held in Applicant A that the "common thread" which links "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee" dictates that "a shared fear of persecution [is not] sufficient to constitute a particular social group".' (Footnotes omitted.) 75 It then proceeded to address persecution for reason of membership of a particular social group. The Tribunal said: 'It was submitted that 'the victim of the Maoist atrocities can be classified as a particular social group ...' In the light of Applicant A and Chen , as quoted above, it would seem to me that persons, albeit victims, with a shared fear of persecution could not constitute a particular social group. The Tribunal went on to say: '... Other possible particular social groups arising on the facts are 'business people in Nepal' and 'wealthy Nepalis.''


case_outcome: referred to

case_text: In Applicant A Gummow J expressed his agreement with the following observations of Burchett J in relation to the meaning of persecution in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568: 'Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution.' (see per Gummow J in Applicant A at 284.) 46 In relation to membership of a particular social group, Gummow J opined at 285 that numerous individuals with similar characteristics or aspirations did not comprise a particular social group of which they were members. Once again, his Honour expressed agreement with a passage from the judgment of Burchett J in Ram at 569 as follows: 'There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group.'


case_text: In relation to (b) above, Allsop J said in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 ; (2001) 114 FCR 408 at [31] that there was no reason to restrict the meaning of the word 'right' to a right in the strict sense which was legally enforceable.


case_text: In Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 ; (2001) 116 FCR 154 ('Applicant C') Stone J, with whose reasons for judgment, Gray and Lee JJ relevantly agreed, held that the primary judge had been correct in his interpretation of s 36(3). The primary judge had said (see [2001] FCA 229 at [30] ): '30 A literal construction of the word "right" in a statute must, in my view, be that it is a legally enforceable right. The extraneous materials to which I have referred above tend to support a literal construction. So does the fact that a literal construction would advance the purposes of the Refugees Convention whereas to construe the word "right" as meaning something less than a legally enforceable right would place much greater obstacles in a refugee's path.' 62 For my part I would have taken the view that the passages from the tabling speech referred to above demonstrate a clear intention on the part of the legislature that much greater obstacles should be placed in a putative refugee's path. Be that as it may, it is important to note that in Applicant C Stone J said at [60]: '60 It should also be recognised that a right of entry such as I have postulated may arise other than by grant of a visa. A country's entry requirements may be met by proof of identity and citizenship of a nominated country being provided at the border, for example by production of a valid passport, without the necessity for a visa. This would explain the use in s 36(3) of the phrase, "however that right arose or is expressed".' 63 In WAGH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 194 ; (2003) 131 FCR 269 ('WAGH') Lee J adhered to the construction of 'right' in s 36(3) which he had given when concurring with that part of the reasons of Stone J in Applicant C which addressed that matter. Carr J considered that Applicant C was authority for the proposition that the word 'right' in s 36(3) meant a legally enforceable right, albeit one that could be revoked (at [74]). 65 His Honour proceeded to refer to the leading judgment of Stone J in Applicant C and then said at [56]-[58]: '56 In the course of her judgment her Honour said, in a passage quoted by the learned primary judge at [65]: The combination of the amendments to s 36 and the doctrine of effective protection leads to [t] his position. Australia does not owe protection obligations under the Convention to: (a) a person who can, as a practical matter, obtain effective protection in a third country; or (b) a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country. 57 It is true that the court affirmed the decision of the learned primary judge in that case. I am not sure that the reference to "effective protection" can, however, be ignored. In any event, after V872/200A the comments of Stone J should, in my view, be read so as to include (if not already comprehended by (a)), a category of persons of whom it can be said that while they have not, in a strict sense, a legally enforceable right, the factual situation is that they are likely to be afforded entry to the third country and as a matter of practical reality, have effective protection there. If there is any conflict between Applicant C and V872/00A I would follow the latter and later case. 58 One reason why a strict construction can not be given to the word "right", so that it is to be read as "legally enforceable right" is that all countries retain as a matter of sovereignty a right to exclude persons from the country. It would be unlikely in many cases that a visa would give a legally enforceable right, although as a matter of practical reality it would be virtually certain that the person in question would be permitted entry.' 66 In its reasons for decision in the present case, the Tribunal said in the section of its decision headed 'FINDINGS AND REASONS': 'DFAT advised on 23 October 2006 that Nepalese citizens do not require a visa to enter India, and if travelling by air, it is necessary only to produce a valid national passport ... The Tribunal also accepts that a Nepalese citizen can fly directly to India from Australia provided they are in possession of a valid Nepalese passport ... The Tribunal finds that the applicant and his wife have valid current Nepali passports, and they could fly directly to India from Australia. ... The Tribunal finds that the applicant and his wife ... would not be denied entry to India, and they could live there indefinitely.' 67 The Tribunal also found that India accepted the Treaty of Peace and Friendship between India and Nepal and that the Treaty had been incorporated into the domestic law of India and, as such, could be accessed by the first appellant. In the circumstances, if it were necessary to find that the first appellant had a right of entry as explained by Stone J in Applicant C then no more was required than the matters which the Tribunal found (see in particular at [60] in Applicant C ). 97 The Tribunal did not err in finding, as it did, that the first appellant had a legally enforceable right to enter and reside in India pursuant to the Treaty of Peace and Friendship between India and Nepal, in the sense which Stone J described in Applicant C at [60]. 98 In my opinion grounds 3 and 4 fail. Accordingly, the alternative basis for affirming the decision of the Federal Magistrates Court, as set out in paragraph 2 of the Notice of Contention, should be upheld. The appellants conceded that, if grounds 3 and 4 failed, the appeal should be dismissed. 99 In all the circumstances, the appeal should be dismissed with costs. I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 13 June 2008 Counsel for the First and Second Appellants by direct client access: D H Godwin Counsel for the First Respondent: L Clegg Solicitor for the First Respondent: Clayton Utz The Second Respondent filed a submitting appearance. Date of Hearing: 26 and 28 May 2008 Date of Judgment: 13 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/904.html


case_text: In WAGH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 194 ; (2003) 131 FCR 269 ('WAGH') Lee J adhered to the construction of 'right' in s 36(3) which he had given when concurring with that part of the reasons of Stone J in Applicant C which addressed that matter. Carr J considered that Applicant C was authority for the proposition that the word 'right' in s 36(3) meant a legally enforceable right, albeit one that could be revoked (at [74]). 64 Hill J dealt with the matter more extensively in WAGH at [54]. His Honour said: '54 The word "right" tends to suggest, prima facie, a legally enforceable right. However, it was held by a Full Court of this court in V872/00A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 185 ; (2002) 122 FCR 57 that "right" as used in the subsection did not mean legally enforceable right of entry and re-entry to a safe third country. The ratio of that decision in the narrowest sense is that s 36(3) will operate in a case where not only is there a legal right of entry but also where, absent a legally enforceable right of entry the person is likely to be allowed entry to the third country and is likely, as a matter of practical reality to have effective protection there and not be subject to refoulement contrary to Art 33 of the Convention: see per Black CJ at [5] and per Tamberlin J at [83], where his Honour said that the question is whether there was "any real risk that the applicant would not be able to secure access to that country so as to attract its protection". ...' 69 In WAGH at [66], Hill J expressed the opinion that the Tribunal had committed an error by ignoring altogether the requirement of s 36(3) that an applicant have not merely a right of entry, but also a right to reside in the other country. I respectfully agree that a right of residence within the meaning of the subsection is not sufficient. However, there can be no foundation for the suggestion that one has to find a separate right of entry and a separate right of residence. The Tribunal was entitled to find as it did that the appellants had a right to enter and reside in India. 70 The STATEMENT OF DECISION AND REASONS of the Tribunal has been recorded on some 28 pages of closely typed script. For present purposes it is sufficient to note the following extracts from the country information referred to: 'Something interesting is happening these days in otherwise turbulent Nepal. Instead of incessant headlines about senseless killings and human-right abuses on a daily basis, there is news of peace parleys and multilateral dialogue. This seemingly non-violent face is a u-turn for a war-torn country so often described as a nation on the brink of collapse, a failing state. In what appears to be a major breakthrough in the decade-long civil war, the ruling pro-democratic seven-party alliance (SPA) and the insurgent Maoists decided on 8 November 2006 to disarm under United Nations supervision. The 35,000 "regular" Maoist guerrillas will be kept in seven cantonments around Nepal and their arms will be locked up. ...' 71 Another report referred to in the country information included: 'The Maoists' 10-year journey from the jungle to government was partly a result of compulsion and partly political wisdom. After 10 years of fighting, the loss of 13,000 lives and massive damage to the country's infrastructure and economy, they were still unable to capture even a district headquarters, let alone the power in the centre. ...'


case_text: Reference was made to Sackville J's leading judgment in Rajalingam where 'what if I am wrong?' terminology had been used. In SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 Bennett J referred to Sackville J's distillation of principle in Rajalingam as follows, at [46] and [48]: '46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear ..., whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. ... ... 48 ... Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its finding of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities ... In Kalala conclusions reached by the Tribunal as to whether certain events did nor did not take place were attended by significant doubt. At [6]-[7] North and Madgwick JJ stated [in Kalala] that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded. '


case_title: Abrahams v Comcare (2007) 93 ALD 147

case_text: The Tribunal thought the matter fell squarely within "the principles set out by the Federal Court in the Abrahams decision." This was a reference to a decision in Abrahams v Comcare (2007) 93 ALD 147. In Abrahams , I said, at [18]: 1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice. 2. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met. 3. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given. 4. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given. 5. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount. 15 Quite apart from the absence of a bright dividing line, this case is further complicated by reason of the following further events. As indicated, Dr Kose has had an accepted claim for psychological incapacity. Comcare suggests that the exact condition recognised is "an adjustment reaction with mixed emotional features"; a claim originally accepted in 2001. On 8 May 2006, no doubt upon legal advice, Dr Kose lodged a further claim for compensation for "somatoform pain disorder/regional pain disorder with anxiety and depression," a claim denied by Comcare both initially and upon reconsideration. On 30 May 2007, Dr Kose lodged an application for review by the Tribunal of that denial the operative date of which seems to be 10 May 2007, the date of the internal review decision. It appears that Dr Kose's legal advisors have arranged that her claim in respect of that 2007 decision will be heard at the same time as the subject claim. 16 Counsel for Comcare was unable to suggest any practical result of significance to his client from the present litigation before me, given those last-mentioned events. Comcare, however, sees the need for a minimum degree of orderliness in the processing of claims and points out here that the subject claim, until the very heel of the hunt, before Comcare's reconsideration of the matter, appeared (1) to be confined to the lower portions of the right upper limb; (2) to be organically based and; (3) principally to be about treatment given for a physically-based condition, and operative treatment proposed, for such a condition. Comcare further points out that, although there were references to possible pain elsewhere and possible psychosomatic explanations for it, Dr Kose, an educated applicant, seems to have been at pains not to rely on psychosomatic factors in relation to the instant claim. 17 It appears that nobody explored in detail, before the Tribunal, though the matter was mentioned before me, the circumstances in which Dr Kose was apparently talked out of seeking to have her claims in respect of the ganglion assessed as falling within Comcare's liability for her accepted psychosomatic injury. 18 For Dr Kose, it is said that there is nothing more common than that medical diagnoses develop with time; that pain in her right upper limb, including up to the shoulder and even into the neck, was notified to Comcare and the prospect of a psychological explanation for a person with an accepted work-related psychological disability was such as to put Comcare on ample notice of the need to assess whether the claimed injury could not have, in whole or in part, been explained by work-related psychological factors. 19 I refer to what I said in Abrahams 93 ALD at [18] and set out in para 14 above, in particular point number 5. 20 In my opinion, there is something to be said in support of both points of view as to which side of the dim dividing line this case would fall on. However, as there is no practical result of significance that could occur in the instant case, given the events which have otherwise happened, I do not think it helpful to embark on the matter, and I think that indeed, in the discretion of the Court, I should refrain from giving the relief sought, even if Comcare would otherwise be entitled to it. 21 I make clear, for the benefit of the Tribunal, that the result is that the Tribunal should proceed on the basis that the decision that it made is correct, even though I have not ruled that that is so. In any case the Tribunal will have to decide the substance of the matter by reason of the second application for review now before it (and referred to in para 15). If, at the end of the day, once the Tribunal has dealt with the substance of the matter, Comcare should take the position that there would be some practical injustice to it as a result of that jurisdictional decision of the Tribunal, Comcare can, of course, exercise such rights it may have to "appeal" to this Court on a question of law involving that jurisdictional matter. 22 I appreciate that Comcare does not seek any order for costs against Dr Kose, nor has it prolonged this matter. However, as it has failed, costs should follow the event. 23 The application will be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 1 August 2007 Counsel for the Applicant: Mr B Dubé Solicitor for the Applicant: DLA Phillips Fox Counsel for the Second Respondent: Mr A Anforth Solicitor for the Second Respondent: Elrington Boardman Allport Date of Hearing: 24 July 2007 Date of Judgment: 24 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1132.html


case_outcome: cited

case_text: It is also well established that the process is an inquisitorial one and it is a matter for an applicant to provide such information as he or she sees fit to support the claim of a well-founded fear of persecution; see Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [187] .


case_text: His Honour there observed that it would be "rare and exceptional" for actual bias to be demonstrated solely from the published reasons for decision. There is nothing in the present case to give rise to any possible suggestion of actual bias nor can there be anything to support a claim of reasonable apprehension of bias within the principles stated by the High Court in Re Refugee Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] to [28]; see also Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at [51] ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] .


case_title: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337


case_outcome: followed

case_text: As a full court observed in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , there are "many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction". Section 65 of the Migration Act does not require the decision-maker to reach a decision to refuse a visa only if a particular matter is established. As their Honours said, quoting from the decision of another full court: It [section 65] requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. 37 It is well established that the scheme contemplated by Part 7 of the Migration Act expressly contemplates that in particular circumstances an appellant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence; see VSAF of 2003 at [12]. See also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] . For these reasons the appeal must be dismissed with costs.


case_text: The third ground of appeal is that the Tribunal failed to consider his claims. This seems to me to be a new ground of appeal which was not a ground of review before the learned Federal Magistrate. In any event it cannot be accepted for the reasons I have already given in relation to the previous ground of appeal. Moreover, as a full court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] : In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing prosecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer his an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application. 29 The final ground of appeal is that the Tribunal failed to carry out its statutory duty. This appears to be a claim that there was a breach of s 424A of the Migration Act . This ground is without foundation.


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

case_text: It may be that the appellant seeks to raise a submission that the Tribunal had a duty to conduct its own independent inquiries. However, as Wilcox J observed in Prasad v Minister for Immigration and Ethinic Affairs (1985) 6 FCR 155 at 169-170, the circumstances under which a decision will be invalid for failure to conduct its own separate inquiries are strictly limited. There is nothing to suggest that that ground was enlivened in the present case.


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


case_text: In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 , von Doussa J usefully summarised the principles applicable to the ground of bias. The principles are stated at [36] to [38] of his Honour's judgment and need not be repeated.


case_text: In SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23] , Bennett J referred to a number of authorities which show that where a Tribunal was merely "identifying deficiencies or inadequacies in the appellant's case" it cannot be said that the Tribunal was relying on information communicated to or received by the Tribunal. Rather, it was setting out its thought processes. The same principle applies here. 31 As her Honour Bennett J said, there was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1). Her Honour referred to the authority of a full court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. That paragraph of VAF has been referred to with approval by other full courts.


case_text: As her Honour Bennett J said, there was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1). Her Honour referred to the authority of a full court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. That paragraph of VAF has been referred to with approval by other full courts.


case_text: It is well established that the scheme contemplated by Part 7 of the Migration Act expressly contemplates that in particular circumstances an appellant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence; see VSAF of 2003 at [12]. See also VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] . For these reasons the appeal must be dismissed with costs.


case_text: The appellants submitted that s 360 imposed obligations to consider arguments in a way that accorded procedural fairness and to identify the critical issues in the review. They argued that what had happened in this case was similar to Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 (' NAFF '). They submitted that the second appellant had not been questioned at the hearing or in subsequent correspondence about a number of matters the inadequacies of his schooling, previous unsuccessful attempts to enrol in his current course, and the relevance of his post-secondary studies to his current course although the Tribunal treated these as factors militating against him. Furthermore, according to the appellants, the Tribunal had identified the documents that it said would be critical to its decision but it did not decide the case by reference to them. 26 The appellants also argued that the second appellant's evidence was that he had undertaken three part-time courses of study after finishing what the Tribunal found was the equivalent of year 12. They submitted that the Tribunal erred in holding that these courses, though undertaken contemporaneously, could not qualify as a "full-time course of study". They also argued that the Tribunal mistakenly focussed on the question whether the delay of two years between finishing the equivalent of year 12 and enrolling at the ITM was justified, instead of considering whether in the context of this class of visa the delay was reasonable. 27 Finally, the appellants contended there were further errors in the Tribunal's alternative finding that the second appellant was not undertaking a full-time course of study. They argued that this finding was tainted by the Tribunal's failure to comply with its obligations under the Act as to procedural fairness. They also said that "undertaking" meant "participating" and not " actively participating", as the Tribunal maintained. They argued that the finding that the second appellant's "progression from associate degree to bachelor degree was consistent with him having actually participated in and completed each year of the program" could only admit of the conclusion that he was undertaking the course. They noted that the Tribunal had accepted that the second appellant was enrolled in an associate degree course at the ITM in 2002/2003; that he converted to a bachelor degree course in 2003/2004 or 2004/2005; and that he was currently enrolled at the ITM. 30 The first respondent contended that the Tribunal's conduct of the review fell to be considered in the context of the surrounding circumstances. These were distinguishable from NAFF . The first respondent also argued that the transcript showed that neither the appellants' representatives nor the second appellant indicated at the hearing that they wanted a further opportunity to give oral evidence. The first respondent submitted that, in asking questions of the second appellant at the hearing, "the Tribunal conveyed its impressions about the existing documentary evidence in support of his oral evidence". Further, according to the first respondent, the Tribunal "clearly indicated that it required further documentary evidence of the applicant's educational history". 31 The first respondent acknowledged that the Tribunal's post-hearing request for further material did not refer to information about the ITM, but submitted that "the Tribunal's comments at the hearing had made it clear that the documentation about all of [the second appellant's] studies was deficient" and that, in consequence, the appellants' representatives "were or should have been aware that the Tribunal had concerns about the adequacy of documentary evidence about all of [his] academic activities". The first respondent pointed out that the appellants' representatives' conduct was consistent with this, since they subsequently provided documentation about the ITM. Hence, the first respondent argued: It is therefore apparent that the appellants' representatives understood that, whatever the details of the Tribunal's written request for further documentary evidence, the Tribunal wanted additional documentary evidence in respect of all of [his] studies, including his studies at ITM. [Emphasis in original] The first respondent submitted that the appellants' representatives' reference, in their letter of 6 February 2006, to "adverse issues" "could only relate to matters about which the appellants and their representatives were not and could not reasonably have been expected to be aware". There was no need for a further hearing, so the first respondent said, because the Tribunal had already raised its concerns about credibility and the documentary evidence. 32 Finally, the first respondent contended that the Tribunal did not misconstrue clause 101.213 of the Regulations and that, in their submissions to this effect, the appellants asked the Court to review the merits of the Tribunal's findings. The first respondent submitted that the Tribunal's construction of the word "undertaking" was "consonant with the word's dictionary meaning" and, in effect, that the Tribunal made a finding of fact adverse to the appellants, which it was open to it to do on the evidence before it. 37 The decision in NAFF is central to the appellants' case. In that case, the High Court held that the Refugee Review Tribunal denied a visa applicant procedural fairness when it failed to act on its own statement at the end of a hearing that it would write to the applicant about inconsistencies in his evidence and allow him time to respond. In their joint judgment at 10, McHugh, Gummow, Callinan and Heydon JJ commented that: One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn. 38 Their Honours drew certain inferences from the Tribunal's decision to adjourn: see NAFF at 11. These inferences were that the Tribunal considered that: (1) the visa applicant's evidence had potential significance in the review; (2) the visa applicant had not done himself justice in the circumstances of the hearing; (3) the procedure had not been entirely satisfactory because it had not been wholly fair to him; (4) the process of review should not be brought to an end so far as the visa applicant's participation in it was concerned until he had been given a further opportunity; and (5) a fair technique by which to take the matter forward was for the visa applicant to be asked to explain the inconsistencies in less stressful conditions. They continued, at 11-12: It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant's statements was not crucial in deciding the review against him. If either of these explanations, or any other explanation, existed, it is to be expected that the Tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant. 39 The joint judgment held that the appellant in NAFF did not lose his entitlement to relief because he did not tender evidence that he had been misled or prejudiced by the Tribunal's failure to act as promised. It also rejected the respondent Minister's submission that there had been no material breach because the suggested internal inconsistencies were not crucial to the Tribunal's reasoning. This was because the Tribunal's "scepticism about particular parts of the appellant's evidence existed to some extent because of [its] scepticism about other parts of [the evidence]": see NAFF at 14. 40 Section 422B (which is equivalent to s 357A in connection with the Tribunal in this case) did not apply in NAFF , although it would in the present case. The reasoning in the joint judgment in NAFF (though not perhaps in Kirby J's judgment) did not, however, depend on the residual operation of the common law requirements of procedural fairness. On the contrary, the reasoning in the joint judgment turns on the operation of s 425 (as well as s 414). Section 348, which applies to the Tribunal here, is equivalent to s 414. 51 As the High Court held in NAFF , it is undisputed that the duty to review involves the duty under s 360 to invite the applicant to a hearing to give evidence and present arguments. On the one hand, as Full Courts of this Court have said, the invitation must afford a real, in the sense of fair, opportunity to the applicant to present evidence and arguments. On the other, as the High Court also said in NAFF , the Tribunal must consider that evidence and arguments. If it concludes that it cannot give such consideration until other steps in the review process are taken, then it cannot complete that review without taking those steps (or indicating that it has, for some reason, changed its mind). 52 I would infer from the Tribunal's statements at the adjourned hearing that there would be a further opportunity to present evidence and arguments that the Tribunal considered that: (1) the adjourned hearing had not afforded the appellants an adequate and fair opportunity to present evidence and arguments in support of their case; (2) further documentary and oral evidence from the appellants might be significant on the review; (3) a fair and proper way to advance the process of review was to identify the missing documentary evidence that the Tribunal considered important, by means of a letter seeking additional information under s 359; (4) the process of review should not be completed until the appellants had had an opportunity to provide the Tribunal with that documentary evidence; and (5) the appellants should be afforded a further opportunity to present evidence and arguments at a resumed hearing if the Tribunal were not satisfied that it should make a decision in the appellants' favour. 53 As we have seen, the Tribunal did indeed send a letter (dated 24 October 2005) under s 359, as it had said it would, and, presumably, after it had perused the "mountain of files" it held for the appellants. In this respect, the case is distinguishable from NAFF where the promised letter was never sent. Having regard to the Tribunal's ultimate reasons for decision, however, it is apparent that the letter did not identify for the appellants the missing documentary evidence that the Tribunal considered important. The letter specifically sought the second appellant's year 12 results, as well as statements from the ELTI and the Liang Ly School (also referred to in the Tribunal's reasons as the "Leang You School"). The letter did not request any further documentation relating to the second appellant's course at the ITM. In particular, contrary to the Tribunal's belief (as stated in its reasons), the letter did not request "results for the visa applicant's associate degree or bachelor degree courses" or "verifiable documentary evidence of his studies at the ITM". 54 In sending its letter of 24 October 2005, the Tribunal purported to give effect to its view that a fair and proper way to progress this case was to send a s 359 letter identifying the missing documentary evidence that it regarded as important for the appellants' case. This letter was not the letter described by the Tribunal in its reasons for judgment as being sent after the adjourned hearing. The letter described in the Tribunal's reasons invited the appellants to provide much more than the letter they actually received. Thus, for example, the Tribunal's reasons refer to a letter inviting the appellants to provide a "[s]tatement from the ITM indicating whether the visa applicant enrolled in an Associate Diploma, Associate Degree or Bachelor Degree course in 2002 and the estimated date of completion of that course. Statement of the visa applicant's academic results in 2002/2003 and 2003/2004, as well as confirmation of his current enrolment". The letter that the Tribunal actually sent contained no such request. The letter referred to by the Tribunal in its reasons was said to have requested details of the Duon Hoa Chinese School and the Atlanta Centre, whereas the letter that the Tribunal actually sent contained no such specific request. 55 As already noted, when the Tribunal adjourned the hearing on 21 October 2005, the Tribunal member apparently believed that a fair and proper way to progress the case was for her to send the appellants a s 359 letter identifying for them what she saw as the important missing documentary evidence for their case. She did not send such a letter. That is, the letter of 24 October 2005 did not identify for the appellants what she saw as the important missing documentary evidence. This much is clear from the Tribunal's reasons. First, as noted above, the Tribunal twice referred to the fact that the appellants had not provided the documentation regarding the ITM, which she mistakenly thought she had specifically sought from them. It drew strong adverse inferences from their failure to provide these documents and the lack of explanation for the perceived deficiency. These failures weighed heavily against the appellants, in the Tribunal's consideration, because of the visa applicant's "bogus claim" regarding Norton University. Secondly, the Tribunal, in its reasons, referred to the fact that it had invited the appellants to provide detailed documentary evidence of studies at various other institutions, including the Atlanta Centre and the Doun Hoa Chinese School. The Tribunal was mistaken if it thought it had specifically requested documentation about these institutions in its letter of 24 October 2005. Thirdly, had the Tribunal sent the letter described in its reasons instead of the letter it actually sent, it appears that it would in fact have identified what it perceived to be the important missing documentary evidence in the appellants' case. 56 There is nothing in the Tribunal's reasons to indicate that the Tribunal member was aware of the fact that the letter actually sent to the appellants sought much less than the letter she described in her reasons as being sent. On the contrary, the Tribunal's clear mistake about the ITM documents strongly indicates that the Tribunal member did not realise that the appellants had not received a letter in the terms she described. It would follow that the Tribunal member was unaware that the appellants had not in fact received a letter identifying for them the documents that she regarded as missing and important for their case. There is nothing in her reasons or in the attendant circumstances that would indicate that she had changed her view that the review process should not be completed until a letter identifying these documents had been sent to the appellants in order that they might direct their attention to providing them (or explaining their absence). As in NAFF , the failure to complete the review process was a failure to comply with the duty, imposed by s 348, to conduct the review and the duty, under s 360(1), to hear from the appellants. 57 It is not sufficient to say, as the first respondent does, that there was discussion at the adjourned hearing about the need for further documentation and some indication from the Tribunal that it did not regard enrolment receipts as sufficient. The whole point of the s 359 letter, as the transcript of the discussion between the Tribunal and appellants' representative shows, was that it would identify for the appellants what the Tribunal saw as the important missing documentation after the Tribunal had gone through the relevant files. Since the Tribunal was to complete this task before sending the s 359 letter, and the files were apparently voluminous, the appellants' representatives were reasonably entitled to rely on the s 359 letter sent to them as stating what the Tribunal perceived to be the documentary deficiencies in the appellants' case. There was nothing in this letter to indicate that the Tribunal considered that the appellants needed to provide further ITM documentation, such as transcripts of ITM results, in order to fill a gap in their case. 58 The fact that the appellant's representatives later provided the Tribunal with additional unsolicited documentation, including some receipts from the ITM, does not alter the significance of the s 359 letter. It is scarcely surprising that the representatives would send additional supportive material, though not specifically sought by the Tribunal, on the straightforward basis that such material was confirmatory of the appellants' position. It does not, however, follow from the fact that this additional material was sent that the appellants' representatives were on notice that the Tribunal considered that documentation beyond that sought in the s 359 letter was, in the Tribunal's view, necessary (or important) to complete the documentary aspects of the appellants' case.


case_text: The Tribunal's decision is a "privative clause decision" within the meaning of s 474. This Court cannot set it aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511.


case_text: The appellants also relied on the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (' SZBEL '). The decision in SZBEL is not especially relevant to the present case, although, taken in the broad, SZBEL emphasizes that conformity with s 360 requires the provision of a real, as opposed, to merely a formal opportunity to give evidence and present submissions. In SZBEL at 600, the Court noted that the Act provides that the applicant for review is to be given an opportunity to be heard on "the issues arising in relation to the decision under review": compare ss 425(1) and 360(1). The Court went on to say that these issues were to be "identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker . . . but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons": see SZBEL at 600. Thus, said the Court, the issues arising on review will ordinarily be the issues that the original decision-maker identified "as determinative against the applicant", plus any other issues identified by the Tribunal: see SZBEL at 600. The Court held that, in the circumstances of the case, the review applicant was not on notice that two aspects of his account were in issue on the review because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues. On this basis, the Court held that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about these determinative issues.


case_text: Other authorities figuring in the appellants' submissions make the same essential point that, where the Tribunal is not minded to make a decision on the papers in a review applicant's favour, s 360 requires that he or she have a real opportunity to present evidence and submissions to the Tribunal. These other authorities included Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (' SCAR ') and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 (' SZFDE '). SZFDE was a case about fraud and is therefore a different case from the present. Whatever the correct approach to the decision in SCAR , SCAR also raises different issues from the present. The Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari for want of procedural fairness. Unknown to the Tribunal, on account of his father's recent death, the review applicant was suffering from extreme distress, for which he had received medication. The Full Court had regard to the obligation that s 425(1) imposed and said, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture".


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SZFDE [2006] FCAFC 142


case_text: Section 426A does not oblige the Tribunal to reschedule a hearing but does not prevent it from doing so: s 426A(2). Where the Tribunal accedes to a request to reschedule the hearing it obviously needs to notify an applicant of the changed date. The Act does not specify the extent of notice that must be given in these circumstances. However, given the Tribunal's obligation to act reasonably and in accordance with the requirements of procedural fairness in exercising its powers ( Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at [40] and see Deane J's discussion in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-6), the rescheduling, just as much as the original invitation under s 425(1), must not be a 'hollow shell or an empty gesture': Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293 at [33] . It follows that an applicant must be given notice of the rescheduled date that is reasonable in all the circumstances.


case_title: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293


case_text: Ms Henderson pointed out that no objection had been made in that court to the appellant making the unsworn statements and no such objection was raised on the appeal. To the extent that the proposed evidence might add to what was said to the Federal Magistrate, Ms Henderson objected that the conditions stated in NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 had not been met. Those conditions, as set out at [42], are: 'first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different.' In my view neither of these conditions was met and I therefore refused to admit the additional evidence. 25 For the reasons given above the appeal must be dismissed with costs. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 23 May 2006 Counsel for the Appellant: Mr B Zipser (pro bono) Counsel for the First Respondent: Ms R Henderson Solicitor for the First Respondent: Phillips Fox Date of Hearing: 10 May 2006 Date of Judgment: 23 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/600.html


case_text: His Honour's decision was grounded in practical considerations, in particular the risk that the Tribunal's process would be 'unreasonably thwarted' by delays caused by a strict requirement that an applicant be given 14 days' notice of each rescheduled hearing, regardless of the reason for that rescheduling. Quite apart from such practical considerations however, it seems to me that there is a substantial difference between an initial invitation to a hearing which names a date and correspondence in which the date of such a hearing is rescheduled. The latter is a variation of the initial invitation and not a new invitation. Hence this is not a case of 'partial compliance' with a statutory obligation; see the comments of McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 at [77] . The section may reasonably be interpreted as applying to an initial invitation and not to a notification of a date that is rescheduled at the applicant's request. It may be, as Barnes FM observed in SZBAZ v Minister for Immigration [2004] FMCA 790 , that the s 425A notice requirements may apply to a hearing rescheduled on the Tribunal's initiative but that is not the case here and I do not need to consider the point.


case_text: The question was not answered in SZDQO which dealt with the more specific question of the application of s 425A(3) . The answer depends on the extent of the 'matters' with which Division 4 of Part 7 of the Act deals an issue on which there is some difference of opinion in this Court; see Branson J's analysis in SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [12] - [16] . The view I have formed about the notice of the rescheduled hearing that was given to the appellant is such that I do not need to explore this difference of opinion or what limits might be imposed in Division 4. This is because I am satisfied that, once it is accepted that s 425A(3) does not apply, the highest that the Tribunal's obligation to give notice of the rescheduled hearing date can be put is that the notice must, in all the circumstances, be reasonable. I am satisfied that the notice given to the appellant met this standard.


case_text: In SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 ; (2005) 144 FCR 251 ('SZDQO') at [29] Conti J held that: '... in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of a rescheduled hearing, at least insofar as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice...' 13 I do not accept the appellant's contention that Conti J's construction of s 425A may create injustice where no notification of the effect of s 426A is included in a notification of a rescheduled hearing. Such notification would have been given in any valid notice of the original hearing date and, in any event, his Honour's holding was made in respect s 425A(3); his Honour did not address the other requirements of s 425A. 14 Anticipating a submission from the respondent (not in fact made) that s 422B prevented an applicant from complaining of procedural unfairness in relation to insufficient notice or a defective notice of a rescheduled hearing, the appellant submitted that, if this position was correct, it was a reason for adopting a construction of s 425A that the section applies in these circumstances. The argument is that the Act discloses an intention to regulate the content of procedural fairness so as not to deprive an applicant of all such rights in particular circumstances. If the notification periods mandated by s 424A of the Act do not apply in relation to a rescheduled hearing, and s 422B prevents an applicant from relying on common law grounds of procedural fairness, it would appear that the applicant had little protection from the unreasonable rescheduling of hearing times. While there is a superficial attraction in this submission I am not prepared to accept that s 422B has this effect. Section 422B is discussed below. 15 I respectfully agree with Conti J's conclusion but, even if I did not, I would need to be satisfied that the decision was 'plainly wrong' before I would be prepared to depart from it; Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 32. The learned Federal Magistrate correctly applied SZDQO in finding that s 425A(3) did not apply in relation to a rescheduled hearing. 16 Accepting that the Tribunal does not have to give notice of a rescheduled hearing requested by the applicant s 425A(3), the question arises whether the limitation of the natural justice hearing rule imposed by s 422B of the Act applies to a rescheduled hearing requested by the applicant. Section 422B, which is found in Part 7 Division 4 of the Act, provides: 'This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. ' (emphasis added.) 17 The question was not answered in SZDQO which dealt with the more specific question of the application of s 425A(3) . The answer depends on the extent of the 'matters' with which Division 4 of Part 7 of the Act deals an issue on which there is some difference of opinion in this Court; see Branson J's analysis in SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [12] - [16] . The view I have formed about the notice of the rescheduled hearing that was given to the appellant is such that I do not need to explore this difference of opinion or what limits might be imposed in Division 4. This is because I am satisfied that, once it is accepted that s 425A(3) does not apply, the highest that the Tribunal's obligation to give notice of the rescheduled hearing date can be put is that the notice must, in all the circumstances, be reasonable. I am satisfied that the notice given to the appellant met this standard.


case_text: Proceedings before the Tribunal, it will be recalled, are but part of an administrative decision-making process and not adversarial litigation. An administrative determination by one Tribunal thus results in no conclusive determination binding on subsequent Tribunals called upon to make a subsequent decision, even in respect to the same claim. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 , 215 CLR 518 at 540 1 Gummow and Hayne JJ explained the position as follows: [71] In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process [Mahon v Air New Zealand Ltd [1984] AC 808 at 814; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 282]. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision -- in this case the grant of a protection visa -- and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision. See also: NBKM v Minister for Immigration & Citizenship [2007] FCA 1413 at [25] [28] per Siopsis J.


case_title: NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 , 214 ALR 264

case_text: The second Ground of Appeal should also be rejected. A claim of reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. And the question as to whether a reasonable apprehension of bias has been " firmly established " must also take into account the manner in which the legislature has directed the Tribunal to carry out its functions, including the inquisitorial nature of the review being undertaken: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14] [21], [2004] FCAFC 328 ; 214 ALR 264 at 268 9 per Allsop J (Moore and Tamberlin JJ agreeing).


case_outcome: considered

case_title: NBKM v Minister for Immigration & Citizenship [2007] FCA 1413


case_title: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 , 42 AAR 297

case_text: In some circumstances it may be prudent for a Tribunal to record why it departs from findings previously made by a differently constituted Tribunal. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J observed, albeit in a different context (at 639): Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. Appl'd: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 42 AAR 297 per Downes J. In the present context it may be that there is no " inconsistency " as such, as opposed to different conclusions being reached upon the basis of different material. But it may nevertheless remain desirable to explain a departure from earlier findings. And, in some circumstances, such an obligation may be imposed upon the Refugee Review Tribunal by s 430(1)(b) and (c) of the 1958 Act, namely the requirement for a Tribunal to prepare a written statement that " sets out the reasons for the decision " and its " findings on any material questions of fact ". But there can be no universal obligation to do so. Departures from findings previously made may arise (for example) simply by reason of the evidence being considered being different or by reason of a different assessment being made as to an applicant's credibility. In the present appeal there was further evidence not previously called before either of the first two Tribunals.


case_title: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437


case_title: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 81 ALJR 1190

case_text: Neither the witness's evidence nor the letter constituted " information " for the purposes of s 424A of the 1958 Act: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] , [2007] HCA 26 ; 81 ALJR 1190. And, even if it did constitute " information ", the evidence and the letter fell within the exception in s 424A(3)(b), namely " information ... that the applicant gave for the purpose of the application ": cf SZIAT v Minister for Immigration & Citizenship [2008] FCA 766 at [39] per Gordon J.


case_text: In some circumstances a departure by a reconstituted Tribunal from the findings and conclusions of an earlier Tribunal may constitute a denial of procedural fairness and a denial of the opportunity " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ", as required by s 425(1): eg SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390. But such is not the present case. The Tribunal's reasons thus contain the following passage: The Tribunal again told the applicant that it had listened to the tapes of his two previous hearings with the first and second Tribunal and that this Tribunal may take into account what he had told previous Tribunals. The Tribunal asked the applicant if he wanted to change or add to anything he had previously said. The applicant stated that he did not. The Tribunal put to the applicant that it was still concerned about why Shouters would ask the applicant, who is not a member of the Shouters, to burn CDs when this task could have been done on a personal computer, in secret. The applicant stated that all he knows is that none of the Shouters do this kind of thing and that perhaps they came to him because he was a good friend of Mr [X] and because he had no religious beliefs and so would not attract the PSB. These were the factual issues later resolved against the now Appellant by the Tribunal. No breach of s 425 can be discerned. The now Appellant was given every opportunity " to persuade " the Tribunal on each of the issues resolved against him. 22 The final Ground seeks to contend that the Federal Magistrates Court failed to consider the application " properly and fairly ". That Ground is without substance. 23 The appeal must be dismissed with costs.


case_text: The decision of the Tribunal was to affirm the decision not to grant a protection visa. The Federal Magistrates Court on 13 June 2008 dismissed an application seeking review of that decision: SZFYW v Minister for Immigration & Citizenship [2008] FMCA 813. 5 The Notice of Appeal sets forth five Grounds , which in summary form contend that the Federal Magistrates Court " erred in law ", those errors arising out of: (i) the inconsistent findings made by earlier decisions of the Tribunal in respect to the now Appellant's claims; (ii) an apprehension of bias arising out of the manner in which the Tribunal considered his claims; (iii) a failure on the part of the Tribunal to provide " clear particulars " of information and a failure to comply with s 424A(1) of the Migration Act 1958 (Cth); (iv) a failure on the part of the Tribunal to provide a " genuine opportunity " to be heard and a failure to comply with s 425 of the 1958 Act; and (v) a failure to " properly and fairly " consider the application for review. 6 The Appellant appeared before this Court this morning unrepresented, although he did have the benefit of an interpreter.


case_text: The earlier two Tribunals were differently constituted and each Tribunal recorded its decision based upon the findings each had made. A later Tribunal is not bound by findings made by an earlier Tribunal: SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138. Gray J there observed: [18] ... The Tribunal must determine a review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time. For all sorts of reasons, the facts as they appear to the Tribunal member making the second decision may differ significantly from the facts as they appeared to the Tribunal member who made the earlier decision. ... [19] In the light of this practical problem, and the part that the reasoning processes of the Tribunal play in the ascertainment of what the issues are, there is a necessary fluidity of those issues until the particular Tribunal member is in the process of grappling with the case. In those circumstances, the Tribunal member cannot regard himself or herself as limited to dealing only with the facts and issues that were perceived by an earlier Tribunal member who has made a decision that has been set aside. The role of the Tribunal's reasoning processes also means that the problem cannot be solved simply by asking the applicant whether there are any new issues, or whether he or she wishes to provide any new information. The possibility that the Tribunal member will himself or herself perceive issues that have not been thought of previously cannot be disregarded. ... 20 The fourth Ground of Appeal goes on to provide that: ... With apprehensive bias mentioned above, the Tribunal failed to provide a genuine opportunity at the Tribunal's hearing; and thus the Tribunal has definitely failed to comply with its obligations under s.425 of the Act. The Ground as to an apprehension of bias has been rejected and there is no other reason why the same fate should not befall this Ground. As required by s 425(1), on 21 November 2007 a letter was forwarded to the now Appellant inviting him to attend the hearing before the Tribunal on 19 December 2007 and he did in fact attend on that date. This Ground too is rejected. The importance of s 425 is repeatedly acknowledged, including its importance in providing " a compulsory opportunity for an applicant to persuade the Tribunal face to face " with the person making the decision: SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 at [28] per Gyles J.


case_title: SZIAT v Minister for Immigration & Citizenship [2008] FCA 766


case_text: The appropriate course for the applicant to adopt would have been to apply to have the decision of O'Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court. It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (" MZWIK ") and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505. 12 Rather than proceeding under s 25(2B)(bb)(ii), I propose to adopt the course taken by Sundberg J in MZWIK , and consider whether there is sufficient merit in the appeal to justify the grant of leave. This seems preferable where the course the applicant should have taken is to make an application in the Federal Magistrates' Court under r 16.05(2). 13 I cannot see any basis for impugning O'Dwyer FM's decision. It is clear that his Honour has the power to dismiss an application for non-appearance of an applicant, and nothing in the notice of appeal evinces any irregularity in the exercise of that power. The applicant's non-appearance before O'Dwyer FM remains unexplained. In these circumstances, the appeal has no prospect of success. 14 Accordingly, I order that leave to appeal be refused, the notice of appeal dated 28 November 2005 be struck out as incompetent, and the applicant pay the respondents' costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 9 March 2006 Counsel for the Applicant: No appearance Solicitor for the Respondents: Ms M. O'Regan from Clayton Utz Date of Hearing: 10 February 2006 Date of Judgment: 9 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/172.html


case_text: The appropriate course for the applicant to adopt would have been to apply to have the decision of O'Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court. It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (" MZWIK ") and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505.


case_text: By cl 8.2(b) of the Scheme, the Bolnisi shareholders are deemed to warrant to Coeur that the shares the subject of the transfer to Coeur Australia will be unencumbered and that the shareholders will have full power and capacity to transfer them to that company. The attention of Bolnisi shareholders is drawn to the deemed warranty in the Scheme Booklet. I have no difficulty with such a deemed warranty: see Re APN News & Media Ltd (2007) 62 ACSR 400 at [57] [63]. 23 Clause 12 of the MIA is headed "Exclusivity" and may be described as containing a "no shop" provision. Clause 13 of the MIA, headed "Payment of costs", may be described as providing for a "break fee". There is a "fiduciary carve out" from cl 12. The maximum period during which the no shop provision can operate is the period of seven months from the date of the MIA, that is to say, the period from 3 May 2007 to 3 December 2007. 24 The amount of the break fee is US$7.78 million. Interestingly, as counsel for Bolnisi observe in their submission, in this case the break fee is "reciprocal", that is to say, the break fee is payable by Coeur, as well as by Bolnisi, in the circumstances set out in the MIA. Of course the break fee is not payable by Bolnisi merely because its shareholders do not agree to the Scheme. 25 I discussed no shop and no talk and break free provisions in Re APN News & Media Ltd (2007) 62 ACSR 400 at [25] [55] and in Re Investa Properties Ltd [2007] FCA 1104 at [31] [35]. In the present case, Norman Alfred Seckold, the Chairman and a Director of Bolnisi, states as follows in his affidavit of 25 October 2007: 22. Clause 12 of the Merger Implementation Agreement between Bolnisi and Coeur ... is an exclusivity provision which provides that, during the exclusivity period, competing third party proposals are not to be sought and discussions or negotiations may not be entered into in relation to a third party proposal. Clause 12 also provides that if third party proposals are received by a party, that party must notify the other party at least 48 hours before the Board of Bolnisi or Coeur (as applicable) recommends acceptance to their shareholders. 23. Clause 13 of the Merger Implementation Agreement is a break fee provision that enables either Bolnisi or Coeur to compensate the other party a break fee of US$7.78 million within 10 days of a demand for payment if certain events occur. 24. Both clauses 12 and 13 of the Merger Implementation Agreement were agreed between Bolnisi and Coeur following arm's length commercial negotiations over a period of one month. Both parties were separately advised and represented in such negotiations by external legal advisers and by external financial advisers, with extensive experience of transactions of this kind. Bolnisi received legal advice from Minter Ellison on the operation of both provisions and that Bolnisi had regard to the Takeovers Panel Guidance Note 7 in the negotiations set out above. 25. I believe that the no shop, no talk and exclusivity provisions do not operate against the interests of Shareholders and it was in their interests that the board of Directors determined to include such provisions.


case_text: I discussed no shop and no talk and break free provisions in Re APN News & Media Ltd (2007) 62 ACSR 400 at [25] [55] and in Re Investa Properties Ltd [2007] FCA 1104 at [31] [35]. In the present case, Norman Alfred Seckold, the Chairman and a Director of Bolnisi, states as follows in his affidavit of 25 October 2007: 22. Clause 12 of the Merger Implementation Agreement between Bolnisi and Coeur ... is an exclusivity provision which provides that, during the exclusivity period, competing third party proposals are not to be sought and discussions or negotiations may not be entered into in relation to a third party proposal. Clause 12 also provides that if third party proposals are received by a party, that party must notify the other party at least 48 hours before the Board of Bolnisi or Coeur (as applicable) recommends acceptance to their shareholders. 23. Clause 13 of the Merger Implementation Agreement is a break fee provision that enables either Bolnisi or Coeur to compensate the other party a break fee of US$7.78 million within 10 days of a demand for payment if certain events occur. 24. Both clauses 12 and 13 of the Merger Implementation Agreement were agreed between Bolnisi and Coeur following arm's length commercial negotiations over a period of one month. Both parties were separately advised and represented in such negotiations by external legal advisers and by external financial advisers, with extensive experience of transactions of this kind. Bolnisi received legal advice from Minter Ellison on the operation of both provisions and that Bolnisi had regard to the Takeovers Panel Guidance Note 7 in the negotiations set out above. 25. I believe that the no shop, no talk and exclusivity provisions do not operate against the interests of Shareholders and it was in their interests that the board of Directors determined to include such provisions.


case_text: It is envisaged that the Palmarejo Plan of Arrangement will become effective on the following day (6 December 2007) after this Court grants, if it does, its approval to the Scheme on 5 December 2007. In Re NRMA Ltd [2000] NSWSC 82 ; (2000) 33 ACSR 595, Santow J had to consider the position of a condition subsequent to which a scheme of arrangement was subject. Although it could not be known whether the condition subsequent would be satisfied until after the approval of the Court was granted, his Honour held that the presence of the condition subsequent was no obstacle to the Court's approval of the Scheme. 29 Santow J distinguished a condition subsequent that was clear, certain and self executing, from a provision for a variation of a scheme. His Honour stated (at 647): Clarity and certainty are thus the touchstones. Provided that clarity and certainty are present on the face of the scheme and no new decision making process intrudes after court approval, it does not matter that different results may emerge in different (but clearly identified) eventualities. A key question is whether the scheme is, according to its own terms, self-executing in the sense that certain results follow in certain defined events. 30 In my view, the present condition subsequent, that is to say, the Palmarejo Plan of Arrangement becoming effective under Canadian law, satisfies this test. I do not think that Santow J's reference to a "new decision making process" is apt to catch the Canadian decision making processes, extraneous to this Scheme, that will be involved in the Palmarejo Plan of Arrangement becoming effective. 31 Before the hearing, affidavits were filed stating the matters referred to in r 3.2 of the Federal Court (Corporations) Rules 2000 (Cth). Mr Seckold, and failing him, Peter James Nightingale, a Director and Company Secretary of Bolnisi, have consented to chair the Scheme meeting. 32 Counsel's submissions addressed other matters of detail on which I was also satisfied. I will have a copy of counsel's submissions placed on the Court file so that that will be available to be read by anyone interested.


case_text: Bolnisi drew this matter to the attention of the Court so that the Court would be aware at the earliest stage that if it should ultimately approve the Scheme, Bolnisi proposes that the approval would be relied on by the United States Securities Exchange Commission for the purposes of s 3(a)(10) of the Securities Act 1933 (US). Approvals have been given at the second court hearing in similar circumstances in connection with a number of previous schemes: see the discussion by Jacobson J in Re Solution 6 Holdings Ltd (2004) 50 ACSR 113 at [37] [45], and the earlier authorities to which his Honour there referred.


case_text: The cases to which the Magistrate referred in the last sentence are De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292 at 302-303, Beck v Montana Constructions Pty Ltd [1964-5] NSWLR 229 at 235 and Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164. Her Honour put the New Zealand case aside because it turned on legislation providing that a person who commissions the making of a computer program is the first owner of the copyright in the program ( Copyright Act 1994 (NZ) s 21).


case_text: The cases to which the Magistrate referred in the last sentence are De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292 at 302-303, Beck v Montana Constructions Pty Ltd [1964-5] NSWLR 229 at 235 and Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164. Her Honour put the New Zealand case aside because it turned on legislation providing that a person who commissions the making of a computer program is the first owner of the copyright in the program ( Copyright Act 1994 (NZ) s 21). 63 The appellant relied heavily on the decision of Jacobs J in Beck v Montana Construction Pty Ltd [1964-5] NSWLR 229. That case concerned copyright architectural plans. The question was whether the owner of land who had paid for the plans to be used in the construction of houses on the land had an implied licence to use the plans. It was held that he did. Jacobs J said at 235: the engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission, or consent, or licence in the person giving the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement. That of itself would not assist the appellant. It is common ground that the appellant is entitled to use the computer program without infringing copyright. 64 The appellant also relied on the observations of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at [59] and [69] to [73]. However, those passages go no further than to recognise, as in Beck , the existence of an implied right of a property owner or a successor in title to use architectural plans. It is true that at [60] their Honours referred to a line of patent cases where an implied licence to use and repair a patented item has been upheld as an implied licence that runs with the patented item itself. But they pointed out that the licence arises because of the rights conferred by letters patent to "make, use, exercise and vend" which can be reflected in the terms of a patent specification. Nothing in that case assists the appellant.


case_title: Pacific Software Technology Ltd v Perry Group Ltd [2004] 1 NZLR 164


case_text: An understanding of some basic concepts involved in the construction of a computer program assists in understanding the appellant's implied term argument. The following description of the general nature of a computer program is taken from the judgment of Gibbs CJ in Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19 ; (1986) 161 CLR 171 at 178-179. A computer program is a set of instructions designed to cause a computer to perform a particular function or to produce a particular result. A program is usually developed in a number of stages. First, the sequence of operations the computer will be required to perform is commonly written out in ordinary language. Next a source program is prepared, usually in a source code which is human-readable. The source code cannot be used directly in the computer, and must first be converted into an object code, which is machine-readable. The program is executed by the computer's central processing unit. See Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [4] .


case_title: Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1


case_text: In Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 345-346 Mason J adverted to the difference between these two categories of implied terms: Of course, I am speaking of an implied term necessary to give business efficacy to a particular contract, not of the implied term which is a legal incident of a particular class of contract, of which Liverpool City Council v. Irwin [1976] UKHL 1 ; [1977] AC 239 is an example. The difference between the two categories of implied term was mentioned by Viscount Simonds in Lister v. Romford Ice and Cold Storage Co Ltd [1956] UKHL 6 ; [1957] AC 555 at 576, where he referred to the search for the second category of implied term as being based 'upon more general considerations', a comment endorsed by Lord Wilberforce in Irwin at 255.


case_text: In Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 345-346 Mason J adverted to the difference between these two categories of implied terms: Of course, I am speaking of an implied term necessary to give business efficacy to a particular contract, not of the implied term which is a legal incident of a particular class of contract, of which Liverpool City Council v. Irwin [1976] UKHL 1 ; [1977] AC 239 is an example. The difference between the two categories of implied term was mentioned by Viscount Simonds in Lister v. Romford Ice and Cold Storage Co Ltd [1956] UKHL 6 ; [1957] AC 555 at 576, where he referred to the search for the second category of implied term as being based 'upon more general considerations', a comment endorsed by Lord Wilberforce in Irwin at 255. 46 Liverpool City Council v Irwin [1976] UKHL 1 ; [1977] AC 239 ( Liverpool ) concerned multi-story council owned dwellings. The landlord retained control over common parts of the building. There had been a problem with vandalisation of the common parts. The question was whether the landlord was obliged to keep the common parts in repair. There was no express obligation to that effect in the leases. The House of Lords implied an obligation to take reasonable care to keep the common parts in reasonable repair and useability. After identifying instances of implication, including where there is an established usage in the relevant trade or activity and where without a term the contract will not work, Lord Wilberforce said at 254: The present case, in my opinion, represents a fourth category, or I would rather say a fourth shade on a continuous spectrum. The court here is simply concerned to establish what the contract is, the parties not having themselves fully stated the terms. In this sense the court is searching for what must be implied. After considering various possible implications, his Lordship went on at 254: In order to be able to choose between these, it is necessary to define what test is to be applied, and I do not find this difficult. In my opinion such obligation should be read into the contract as the nature of the contract itself implicitly requires, no more, no less: a test, in other words, of necessity. He then explained, by reference to the relationship between the parties (landlord and tenant) and the nature of the buildings (multi-occupation high rise dependent on stairs, lifts and chutes for access and liveability), that it was necessary that the landlord have some obligation to keep the common areas in repair. His Lordship concluded that since the test of the existence of the term was "necessity", the standard of repair required should not exceed what was necessary having regard to the circumstances. 47 The "necessity" test was adopted by the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 104-105. The Board referred to Lord Salmon's explication of "necessity" in Liverpool --that the term sought to be implied must be one without which the whole transaction would become "inefficacious, futile and absurd". 50 Their Honours then quoted with approval the passage from Lord Wilberforce's speech in Liverpool set out at [46], and observations to the same effect by the House of Lords in Scally v Southern Health and Social Services Board [1992] 1 AC 294 at 307. 52 The appellant's contention that a contract for the supply of a computer program carries with it an implied licence to use the program and call for the source code is a claim for Chitty's "standardised" implied term that is not dependent on the intentions of the parties, actual or presumed. In order to determine whether the "necessity" test in Liverpool and the later cases is satisfied in relation to contracts for the supply of computer programs, it is necessary to consider the provisions of Division 4A of Part III of the Act. 53 This Division was inserted by the Copyright Amendment (Computer Programs) Act 1999 . It is headed Acts not constituting infringements of copyright in computer programs . Section 47AB provides that in Division 4A computer program includes any literary work that is: (i) incorporated in, or associated with, a computer program; and (ii) essential to the effective operation of a function of that computer program. That section builds on the definition of "computer program" in s 10, which is in Part II Interpretation : a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 54 Section 47D, which is headed Reproducing computer programs to make interoperable products , provides: (1) Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making of a reproduction or adaptation of the work if: (a) the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original program) used for making the reproduction or adaptation; and (b) the reproduction or adaptation is made for the purpose of obtaining information necessary to enable the owner or licensee, or a person acting on behalf of the owner or licensee, to make independently another program (the new program), or an article, to connect to and be used together with, or otherwise to interoperate with, the original program or any other program; and (c) the reproduction or adaptation is made only to the extent reasonably necessary to obtain the information referred to in paragraph (b); and (d) to the extent that the new program reproduces or adapts the original program, it does so only to the extent necessary to enable the new program to connect to and be used together with, or otherwise to interoperate with, the original program or the other program; and (e) the information referred to in paragraph (b) is not readily available to the owner or licensee from another source when the reproduction or adaptation is made. (2) Subsection (1) does not apply to the making of a reproduction or adaptation of a computer program from an infringing copy of the computer program.


case_text: The "necessity" test was adopted by the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 104-105. The Board referred to Lord Salmon's explication of "necessity" in Liverpool --that the term sought to be implied must be one without which the whole transaction would become "inefficacious, futile and absurd".


case_text: The implication of terms "independent of intention" was considered in some detail in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 ( Byrne ). At 447-448 their Honours said: What, then, is involved in the proposition that a contractual term is implied as a matter of law rather than as the assumed intention of the parties? There is at least one basic distinction. It is that ... terms implied by the application of what one might call the business efficacy test are terms unique to the particular contract in question, depending upon the form of the contract, the express terms and the surrounding circumstances. By contrast, terms implied by law are, in general, implied in all contracts of a particular class or which answer a given description. 49 Later at 450 their Honours said: Many of the terms now said to be implied by law in various categories of case reflect the concern of the courts that, unless such a term be implied, the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined. Hence, the reference in the decisions to "necessity". This notion of "necessity" has been crucial in the modern cases in which the courts have implied for the first time a new term as a matter of law. 66 In Byrne at 422 Brennan CJ, Dawson and Toohey JJ approved the following passage from the reasons of Deane J in Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539 at 573: The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. 67 No term such as that sought by the appellant can be supported on the business efficacy basis. The existence of ss 47D and 47E show that the implication of the term is not necessary for the reasonable or effective operation of the particular contract in the circumstances of the case. 68 As part of its implied term case the appellant submitted that regardless of whether the respondent was its employee or an independent contractor, the purchase of a computer program includes, ipso facto, the source code. This was said to be so because of what counsel described as the "definition of " a computer program in s 21(5) of the Act: For the purposes of this Act, a computer program is taken to have been reproduced if: (a) an object code version of the program is derived from the program in source code by any process including compilation; or (b) a source code version of the program is derived from the program in object code by any process, including decompilation; and any such version is taken to be a reproduction of the program.


case_text: Their Honours then quoted with approval the passage from Lord Wilberforce's speech in Liverpool set out at [46], and observations to the same effect by the House of Lords in Scally v Southern Health and Social Services Board [1992] 1 AC 294 at 307.


case_outcome: distinguished

case_text: The appellant also relied on the observations of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at [59] and [69] to [73]. However, those passages go no further than to recognise, as in Beck , the existence of an implied right of a property owner or a successor in title to use architectural plans. It is true that at [60] their Honours referred to a line of patent cases where an implied licence to use and repair a patented item has been upheld as an implied licence that runs with the patented item itself. But they pointed out that the licence arises because of the rights conferred by letters patent to "make, use, exercise and vend" which can be reflected in the terms of a patent specification. Nothing in that case assists the appellant.