case_text: The discretionary power, conferred on the Minister by s 501(1) of the Act, is unfettered in its terms. As Heydon and Crennan JJ (with whom Gleeson CJ agreed) said, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370 at 401 [128] , speaking of the similarly wide discretion conferred on the Minister by s 501(2): "Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in the context in the Act. As ministerial direction No 21 makes clear, the minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community." The protection and expectations of the Australian community are not, however, binding considerations when the Minister him or herself makes a decision under s 501. The same must be true of international treaty obligations. As McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 33 [101] ; " ...In the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error." 25 This passage cannot be understood as supporting an unqualified proposition that an error in construing and applying a policy or an unincorporated treaty, which the decision-maker is not bound to apply, will amount to jurisdictional error. This will only be so if the misconstruction is "serious" such that "what is applied is not the policy but something else ...". Moreover their Honours' reasoning assumes that the Tribunal was bound to give consideration to the ministerial policy. Whether or not that be right in respect to a ministerial policy, it is now clear that this is not the case where unincorporated international treaty obligations are concerned. This was accepted by French J in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875. His Honour said (at [59]) that: "There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration "in all cases concerning children". However the existence of that obligation of international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions. ... Such considerations do not thereby become mandatory. In the joint judgment in re Minister for Immigration and Multicultural Affairs; ex parte Lam ...McHugh and Gummow JJ referred to the "... established doctrine" that obligations under international treaties "... are not mandatory relevant considerations attracting judicial review for jurisdictional error." The best interests of the children do not, by virtue of Australia's commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law ... But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision makers." 37 In Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1, the applicant claimed to have been denied procedural fairness by the Minister when he made a decision to cancel his visa under s 501(2) of the Act. The applicant had been given a notice by the Department advising him that the Minister was proposing to consider cancellation of his visa. Various relevant matters were identified, including the best interests of any children with whom the applicant had an involvement. The applicant made detailed submissions including claims relating to the effect of his deportation on his Australian born children. It was apparent from those submissions that the children were being cared for by a particular person. After the submissions had been received an officer of the department sought information from the applicant such as the name, address and telephone number of the children's carers. It was said that the department wished to contact the carers in order to assess some of the applicant's claims. Although the applicant provided the requested particulars no contact was made with the person who was caring for the children. The Minister cancelled the visa. The applicant claimed to have been denied procedural fairness because he had a legitimate expectation that the carer would be contacted and her views taken into account and that expectation was not fulfilled. The High Court dismissed the application. Gleeson CJ said (at 13-14): "[36] The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment. [37] A common form of detriment suffered where a decision maker has failed to take a procedural step is loss of an opportunity to make representations. ... A particular example of such detriment is a case where the statement of intention has been relied upon and, acting in the faith of it, a person has refrained from putting material before a decision maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essential practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. [38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children." McHugh and Gummow JJ came to a similar conclusion. Their Honours said (at 34-35) that: "[105] But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision making process not the decision ... [106] The applicant by the statement in the letter to him of 7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act. It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice. Hayne J concluded (at 38-39) that: "[122] ...it is enough to say that even if the Department's letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the appellant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in anyway from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children. ..." 38 The applicant's case, insofar as it is founded on claims that he had a legitimate expectation which was not fulfilled and which occasioned practical unfairness relies on the passages just quoted from the judgment of Gleeson CJ in Lam . 39 The applicant contends that he had a legitimate expectation that the Minister would apply the tests identified in the initial submission "and that he would be heard in the event that it be proposed that relevant contents of the Assessment were amended or abandoned to his detriment." It is said that the practical unfairness arose because, when an allegedly different test was propounded in the reassessment and was referred to in the issues paper given to the Minister he was unaware of the change. He claims, that had he known of the change, "he could have made submissions urging against their adoption, and those might have found favour." 40 For reasons already given I do not consider that it is possible to discern, in the department's initial assessment and the reassessment, materially different formulations of the tests to be applied in determining Australia's obligation to him under the ICCPR and the CAT. Even if some significant differences did exist it does not follow that any practical unfairness was occasioned by the procedures which were adopted. It is to be noted that, in both assessments, the conclusion was reached that non-refoulment obligations did not arise. It is also to be noted that there is no evidence of any subjective expectation, harboured by the applicant (or his solicitor) at relevant times of the kind now alleged much less any evidence of reliance on it. As the applicant's solicitor frankly acknowledged, in her evidence, comprehensive submissions were made on the critically relevant issues. Nothing was omitted as a result of any expectation engendered by the Department or the Minister. The process adopted gave rise to no practical unfairness.


case_outcome: cited

case_text: The applicant seeks an affirmative answer to this question relying on the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189. A delegate of the Minister had determined that the respondent should be deported because he had committed various criminal offences in Australia. He appealed to the Administrative Appeals Tribunal. In affirming the delegate's decision the Tribunal made two brief references to a ministerial policy statement relating to criminal deportation. French and Drummond JJ held (at 211) that the ministerial policy statements "were relevant factors which the Tribunal was bound to consider although not bound to apply so as to prejudice its independent assessment of the merits of the case." Their Honours found that the Tribunal had failed to have regard to certain central elements in the policy in coming to its decision. They said (at 208) that: "On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis the disposing of the case in hand, but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of a policy may reduce to misconstruction of the statute or misunderstanding of its purpose." 26 His Honour expressly rejected a contention that the Full Court decision in Gray compelled a different conclusion. His Honour said (at [62], [63], [66]) that: "[62] Although the Minister, like the AAT in Gray's case, is not bound to apply the Ministerial direction this does not preclude him or her from adopting a ministerial policy to be applied in such cases providing he does not fetter his discretion in so doing. The adoption of a policy guideline would be entirely consistent with the impited legislative intent that the Minister's powers not be exercised capriciously or arbitrarily, albeit the policy might be changed from time to time. In this case the Issues Paper told the Minister no more than that it was open to him to be guided by the factors set out in the Direction. It did not suggest that he apply the policy. The facts provided to the Minister for consideration reflected those identified in the Direction. But although it may be inferred that the Minister decided to adopt that general approach, it does not mean that he was bound to treat the interest of Mr Le's children as a primary consideration or that he in fact did so. [63] The best interests of the children of the visa holder affected by a decision taken by the Minister under s 501 cannot be regarded as a mandatory relevant factor in the exercise of the Minister's discretion by reason of the terms of the statute, international law or the Minister's own policy directions ... [66] Absent a requirement, conditioning the exercise of the cancellation power, that the Minister have regard to the best interests of the visa holder's children, the complaint of a constructive failure to consider their interests, even if made out, would not expose a jurisdictional error..."


case_outcome: referred to

case_text: Australia's unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error. 28 For these reasons I do not consider that the Minister made any jurisdictional error, even if she erred in construing and applying the ICCPR or the CAT.


case_text: Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. The character test is defined in s 501(6), it provides that a person does not pass the character test, inter alia, if the person is not of good character having regard to the person's past and present general conduct. Section 499 of the Act empowers the Minister to give written directions to decision-makers about how they are to exercise discretionary powers under the Act. Decision-makers are bound to comply with such directions. The Minister him or herself is not so bound when exercising powers personally: see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 544 [57]. Decisions made by a delegate of the Minister under s 501(1) are reviewable by the Administrative Appeals Tribunal; decisions made personally by the Minister are not: see s 500(1). 15 Article 4 of the CAT provides that: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." 16 Article 6 of the ICCPR provides that: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrately deprived of his life." 32 Procedural fairness required that the applicant should be advised of any "critical point on which the decision would turn": see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 540 [43]. He was also entitled to an opportunity to advance evidence and make submissions in relation to any prejudicial material before the Minister made her decision. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage subsequently quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600 [32] , a Full Court of this Court said (at 590-1) that: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."


case_text: Procedural fairness required that the applicant should be advised of any "critical point on which the decision would turn": see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 540 [43]. He was also entitled to an opportunity to advance evidence and make submissions in relation to any prejudicial material before the Minister made her decision. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage subsequently quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600 [32] , a Full Court of this Court said (at 590-1) that: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." 34 In my opinion, the procedures adopted by the department satisfied the requirements of procedural fairness in the present case. The invitation identified with clarity one of the crucial or relevant points on which the Minister's decision might turn. The applicant was afforded the opportunity, on two occasions, to make detailed submissions on the construction and application of the two treaties. Conflicting assessments by the departmental officer and the applicant's solicitor as to the proper characterisation of the level of risk to be confronted, should the applicant return to the Lebanon, were placed before the Minister. So too were submissions relating to the correct formulation of the relevant treaty obligations. They were incorporated in the issues paper. There was no requirement that the department's issues paper should be provided to the applicant before it was considered by the Minister: see M238 of 2002 v Ruddock [2003] FCAFC 260 at [54] . Furthermore, there was no requirement that the Minister's views on these matters, after she had considered the submissions and the issues paper, should be exposed to the applicant for further comment prior to a decision being made: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 603 [48] .


case_text: Federal Magistrate Nicholls concluded that the applicants were seeking to re-agitate before the Court claims and explanations made before the Tribunal, and thus were seeking impermissible merits review (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259). 33 With regard to the applicants' claim that the Tribunal's finding is "obviously illogical", Nicholls FM could not discern any illogicality in the approach of the Tribunal. Moreover, his Honour questioned whether any such claimed illogicality could found jurisdictional error.


case_outcome: affirmed

case_text: Federal Magistrate Nicholls said, at [34] of his reasons for judgment ( SZCOV & Anor v Minister for Immigration and Citizenship & Anor [2008] FMCA 1171): At the hearing, the applicant husband confirmed that his complaints about the Tribunal decision were that the Tribunal treated him unfairly and unreasonably, that it did not comply with s.424AA of the Act, nor with s.424A(1) of the Act, that the "decision was biased", and that the Tribunal did not take account of his practice of Falun Gong in Australia because of s.91R(3) of the Act, even though there was evidence provided by two witnesses who supported his claims in that regard.


case_text: His Honour continued, under the heading "Further Written Submissions", at [35]: Following the hearing of this matter, and just before handing down judgement in this matter, the Full Federal Court handed down its judgement in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ("SZJGV") which dealt with the understanding and application of s.91R(3) of the Act. In view of the Tribunal's use and reliance on this section, I subsequently gave both parties the opportunity to make further written submissions. Both parties have filed supplementary submissions in relation to this issue. 31 In "Ground One Bias and Apprehended Bias" Nicholls FM concluded that the fact that the Tribunal rejected the applicant's claim to have supported Falun Gong in China was open to it, and was not demonstrative of bias, saying in [43]: The Tribunal's findings complained of now by the applicants were clearly findings that were open to the Tribunal to make on the material before it, and for which it gave extensive and cogent reasons. In all the circumstances, I cannot see that the applicants' complaint of an apprehension of bias or bias is made out. 37 The one aspect of this appeal which requires detailed consideration is whether the Tribunal was in breach of the requirement of s 91R(3) of the Act in its consideration of the evidence of the first appellant's practice of Falun Gong in Australia, in the light of the judgment of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ( SZJGV ). 38 Section 91R(3) provides: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.


case_text: Barrett has recently successfully sued another home builder for copyright infringement in respect of the Seattle design: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509. In that case Gilmour J has comprehensively reviewed copyright law principles as applicable to home designs: see especially at [13]-[28]. I gratefully adopt that review and incorporate it in these reasons. 8 Barrett's Seattle design is Schedule A to these reasons. 9 Carlisle's Provence design is Schedule B to these reasons. 22 In Metricon subsistence of Barrett's copyright in the Seattle was not challenged. However, Gilmour J noted at [34]: The drawing process, as evidenced in (Barrett's) affidavit material, shows a substantial evolution in the design concept and implementation, which is clearly revealed in the sequence of drawings exhibited. There are approximately 130 drawings and notes that culminate in the final Seattle 31 plan, which Barrett approved in or about September 1999 . 23 Carlisle disputed that there were 130 drawings in evidence in the present case. My calculation accords with that of Gilmour J. There may well be some duplication, with the same drawing being reproduced by sender and receiver. But I am satisfied that the general conclusion reached by Gilmour J is equally justified in the present case. 24 By September 1999 Barrett was building the first prototype of the Seattle design at 10 Brownell Road, Glen Iris, as a home for Mr Roberts. About this time it commenced marketing, building and selling houses in accordance with the Seattle plan. The product was available in 22, 26 or 31 square versions. The first display home was built and opened at a display village located at 47 Scenic Drive, Beaconsfield in January 2000. 25 The Seattle design proved to be popular and sold very well. 81 In Metricon at [29]-[42] Gilmour J applied those principles and held that the al fresco quadrant was a substantial part of the Seattle and Memphis designs. I respectfully agree with his Honour's conclusion and reasoning, which I would have arrived at independently, for the following reasons. 84 In visual terms, Gilmour J at [40] described the impression presented by the al fresco as built: The layout of the Seattle 31 gave the impression of a free-flowing design, leading from the hallway to the hub of the home, with the al fresco quadrant, under one roof-line, being central to the design. The impression was reinforced by the open-plan kitchen that looked over the living and al fresco areas. The design allowed one to view into the rumpus room which enhanced the free-flowing design features of the Seattle 31 plan. These features were clearly based in a communal area of the plan, so as to optimise appreciation of the al fresco quadrant and surrounding living areas. Based on my impression, I would describe the al fresco quadrant as being substantial in a qualitative sense. That accords with my impression.


case_outcome: applied

case_text: Further, I am satisfied on the balance of probabilities, while having regard to the seriousness of such a finding (see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) , that Messrs Doulgeridis, Taylor and Morrison gave consciously untrue evidence when they said that the Rochester was mentioned at the Mallesons conference. It inevitably follows that they must have colluded in so doing. 76 Although I am not aware of any consideration in civil cases of the probative effect of lies, the probative logic remains the same (see Evidence Act 1995 (Cth) s 55(1)) , subject of course always to the application of a different standard of proof with the Briginshaw qualification. 77 In the present case, the most likely explanation for Messrs Doulgeridis, Taylor and Morrison telling lies about what was said at the Mallesons conference is that they realised that the failure to mention the Rochester would tend to show that Rochester was not the true source of their Provence design. If they invented an untrue source, the most likely explanation for that is that they knew the source alleged by Barrett was the true one. 78 The evidence points to the following conclusion, which I find. Mr Doulgeridis did copy the al fresco quadrant from Barrett's Seattle plan, which had been on the market for several years. Probably he did so without much thought and assumed, because the plan had been around for a while, that it was in the public domain, especially in Western Australia. When challenged, the Carlisle directors first raised the argument that the al fresco was commonplace and devoid of originality. The initial versions of the defence reflect this. When the directors were unable to produce any concrete examples of the design pre-dating the Streeton, they fell back on the Rochester argument. When faced with the difficulty that there was no record of mentioning the Rochester on the first opportunity to do so, they falsely claimed that they did. 79 As already mentioned, Carlisle's evidence of the alleged design history included three sketches, and in particular the sketch subsequently identified as Sketch C. The mere existence of the sketches does not rule out Mr Doulgeridis having produced them by copying the Seattle. Given the false Rochester story I am unable to be satisfied as to the truth of any positive case advanced by Carlisle as to the design history of the Provence.


case_text: In Tamawood their Honours did not refer to the earlier Full Court decision in Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309. This appears to have been a "substantial part" case: see at [37]. In any event, the Full Court said at [28]: Further, in a case where there has been deliberate copying, the court will not look kindly on a defendant when the plaintiff seeks to establish that what has been copied is sufficiently objectively similar to the plaintiff's work. In Blackie & Sons Ltd v The Lothian Book Publishing Co Pty Ltd [1921] HCA 27 ; (1921) 29 CLR 396 Starke J said at 404: It is not for the court to make the way of the taker of copyright matter easy. It is a sound principle of copyright law that the court should not allow one man to take away the result "of another man's labour, or, in other words, his property", unless it is satisfied that the part taken is "so slight, and the effect upon the total composition was so small", "as to render the taking perfectly immaterial", or what is much the same thing, that the part taken is an unsubstantial part. (Citations omitted.) See also S W Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 484 where Wilson J referred with approval to the judgment of Street J in Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 where his Honour acknowledged that his finding of infringement had been coloured by the unmeritorious use made by the defendant of the plaintiff's work. 91 The Full Court in Clarendon later at [39] made it clear that a finding of deliberate copying was not conclusive. Objective similarity remains to be proved. Their Honours said: But copying can be both conscious and unconscious. When copying is deliberate then, so it seems, the Court is permitted to show greater latitude in the plaintiff's favour. We accept this approach should not be taken too far. In a given case there either is or is not sufficient objective similarity to make out infringement. It will only be when the trial judge regards the position as finely balanced that he should err in favour of the plaintiff if the conduct complained of is deliberate . I shall follow that approach.


case_text: A finding of subjective copying is relevant to the issue of sufficient similarity. In Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 43 IPR 1 Lindgren J, with whom Finkelstein J agreed, said at [86] that ...where subjective copying occurs there can be expected to be found an infringement, unless it transpires that that the product is so dissimilar to the copyright work that the copyright work can no longer be seen in the work produced. Subsequently in Tamawood Wilcox and Lindgren JJ at [46] somewhat qualified that view. Their Honours noted that the primary judge in the case before them had "expressed surprise" at the passage from Eagle . Their Honours said: Referring to an expectation, that statement allows for exceptions. Also it must be read in context. As stated earlier in the judgment (at [72]) Eagle was better regarded as a case of reproduction of the whole of the copyright work, so it was strictly not necessary to undertake the "substantial part" inquiry. Eagle was a case of subjective copying of the shapes and arrangement of, and interrelationship between rooms, and of traffic flow, throughout the house. The statement which surprised his Honour is akin to that of Lord Bingham in Designers Guild Ltd v Russell William (Textiles) Ltd [[2001] FSR 11 , [2000] UKHL 58 at 116, 117] ( Designers Guild ) that: ...[w]hile the finding of copying did not in theory conclude the issue of substantiality, on the facts here [ Designers Guild was also a case of overall similarity] it was almost bound to do so. It was acknowledged several times elsewhere in the judgment in Eagle (at [69], [74] and [103], for example) that subjective copying alone is not enough, and that where a part is taken it must be a substantial part of the copyright work. (Peterson J's aphorism, "what is worth copying is prima facie worth protecting", a statement made in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 610 in relation to the subsistence of copyright, was in fact invoked in the context of infringement and "substantial part" in Ladbroke by Lord Reid at 279 and by Lord Pearce at 293-294, but the House of Lords may be taken to have cautioned against this practice in Designers Guild ).


case_text: In the criminal law there is extensive jurisprudence as to the evidentiary use that can be made of lies. The leading case is Edwards v The Queen [1993] HCA 63 ; (1993) 178 CLR 193. Deane, Dawson and Gaudron JJ, after noting that ordinarily the telling of a lie will merely affect the credit of the witness who tells it, said at 209: It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence for which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from the realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him". (Citations omitted.)


case_text: First, in purely quantitative terms (which is relevant, although not of course conclusive), the al fresco quadrant is about a third of the total floor area. Less may be sufficient; a defendant who took four of the 32 lines of Rudyard Kipling's If in an advertisement for a "reviver of nerve power" was held to have taken a substantial part: Kipling v Genatosan Ltd [1917-1923] MacG Cop Cas 203. 83 More importantly, the al fresco quadrant is an essential part of the house, something that Le Corbusier characterised as "a machine for living in" ( Vers une architecture , 1923). Potential buyers would recognise the al fresco quadrant as a part of the house where they and their family would spend most of their waking hours. Thus the al fresco quadrant had a commercial significance, as the evidence demonstrated.


case_text: The historical background and authoritative judicial interpretation of the substantial part requirement, in the context of a building design dispute, are comprehensively reviewed by Wilcox and Lindgren JJ in Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 at [47]-[56]. 85 Counsel for Carlisle submitted that the al fresco quadrant "was the product of negligible or trivial skill, labour and effort". For the reasons given in relation to the subsistence issue, I reject this submission; see Tamawood at [55]-[56]. 86 Counsel also argued that by the time the Provence was designed in 2003 the al fresco quadrant had become commonplace. However, the relevant time for assessing the "substantial part" question is when the Seattle was designed, that is in 1999. If that were not so, copyright owners would lose their rights provided a sufficient number of infringements had been perpetrated. 87 I find that the al fresco quadrant was a substantial part of Barrett's designs and buildings. 88 A finding of subjective copying is relevant to the issue of sufficient similarity. In Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 43 IPR 1 Lindgren J, with whom Finkelstein J agreed, said at [86] that ...where subjective copying occurs there can be expected to be found an infringement, unless it transpires that that the product is so dissimilar to the copyright work that the copyright work can no longer be seen in the work produced. Subsequently in Tamawood Wilcox and Lindgren JJ at [46] somewhat qualified that view. Their Honours noted that the primary judge in the case before them had "expressed surprise" at the passage from Eagle . Their Honours said: Referring to an expectation, that statement allows for exceptions. Also it must be read in context. As stated earlier in the judgment (at [72]) Eagle was better regarded as a case of reproduction of the whole of the copyright work, so it was strictly not necessary to undertake the "substantial part" inquiry. Eagle was a case of subjective copying of the shapes and arrangement of, and interrelationship between rooms, and of traffic flow, throughout the house. The statement which surprised his Honour is akin to that of Lord Bingham in Designers Guild Ltd v Russell William (Textiles) Ltd [[2001] FSR 11 , [2000] UKHL 58 at 116, 117] ( Designers Guild ) that: ...[w]hile the finding of copying did not in theory conclude the issue of substantiality, on the facts here [ Designers Guild was also a case of overall similarity] it was almost bound to do so. It was acknowledged several times elsewhere in the judgment in Eagle (at [69], [74] and [103], for example) that subjective copying alone is not enough, and that where a part is taken it must be a substantial part of the copyright work. (Peterson J's aphorism, "what is worth copying is prima facie worth protecting", a statement made in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 610 in relation to the subsistence of copyright, was in fact invoked in the context of infringement and "substantial part" in Ladbroke by Lord Reid at 279 and by Lord Pearce at 293-294, but the House of Lords may be taken to have cautioned against this practice in Designers Guild ). 90 In Tamawood their Honours did not refer to the earlier Full Court decision in Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309. This appears to have been a "substantial part" case: see at [37]. In any event, the Full Court said at [28]: Further, in a case where there has been deliberate copying, the court will not look kindly on a defendant when the plaintiff seeks to establish that what has been copied is sufficiently objectively similar to the plaintiff's work. In Blackie & Sons Ltd v The Lothian Book Publishing Co Pty Ltd [1921] HCA 27 ; (1921) 29 CLR 396 Starke J said at 404: It is not for the court to make the way of the taker of copyright matter easy. It is a sound principle of copyright law that the court should not allow one man to take away the result "of another man's labour, or, in other words, his property", unless it is satisfied that the part taken is "so slight, and the effect upon the total composition was so small", "as to render the taking perfectly immaterial", or what is much the same thing, that the part taken is an unsubstantial part. (Citations omitted.) See also S W Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 484 where Wilson J referred with approval to the judgment of Street J in Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 where his Honour acknowledged that his finding of infringement had been coloured by the unmeritorious use made by the defendant of the plaintiff's work. 95 Counsel for Carlisle relied on the proposition that the more simple, commonplace, familiar and straight forward the subject matter of a copyright work, the closer the similarity that will be required if infringement is to be found: Tamawood at [42]. He cited the well known case of Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 at 103-104, a case which concerned the representation of a hand making the mark of a cross on a ballot paper. 96 This proposition, while undoubtedly correct, is of little assistance in the present case. Barrett's al fresco quadrant was truly original and commercially successful. Nor is it to the point, as counsel for Carlisle argued, that there are differences elsewhere between the Provence and the Barrett designs, such as in respect of the front facades. The fact that this is a "substantial part" case necessarily means that there are other parts of Carlisle's works in respect of which there is no allegation of copying. 97 Barrett's expert witness Dr John Cooke compared the Seattle plan to the Provence plan. He said: The rear part of the [Provence] plan, containing Kitchen, Meals, Family, Alfresco, Rumpus, Bed 2, Bed 3, Bed 4, Laundry, Bath, WC, Laundry and Pantry is essentially very similar in layout (mirror reversed) to the corresponding area in the Seattle plan, with differences in the arrangement of wet areas and angled doors to Bed 3 and Bed 4 instead of the doors at right angles to the corridor in the Seattle plan. The main difference in this part of the plans is the shape of the Kitchen and the access to the Laundry (direct from the Kitchen in the Respondent's Plan; from the bedroom corridor in the Seattle Plan). The position of the Laundry access in the Respondent's Plan has enabled the bedroom corridor to be shortened. 98 In comparing the respective houses, Dr Cooke said: The vista from the Entry in the (Carlisle house) (Photograph No 67) is closed by a recessed and top lit wall feature, whereas the corresponding vista in the Seattle (Photograph No 4) is closed by an aperture in the wall beside the Rumpus room doorway and the doorway of the Rumpus room itself. The Rumpus room doorway is visible in this vista because the rear part of the plan of the (Carlisle house) is a mirror reversed version of the Seattle plan, with the result that the Entry access leads to the Rumpus room doorway in the Seattle whereas in the (Carlisle house) the Rumpus room is to the right of the Entry access. However the spatial effects in both houses are similar. 99 He concluded: Overall, in my opinion the arrangement of the Alfresco and surrounding living areas, including the indoor/outdoor connection and the Alfresco space itself is a highly significant feature of both houses [reference to photographs] as is the organization of the circulation areas to minimize waste and maximize virtual impact.


case_outcome: followed

case_text: restriction in s 477A: ... imposes a condition which is of the essence of a new right (per Windeyer J in Australian Iron & Steel Limited v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488) and thus: ... stipulates an essential condition or jurisdictional requirement ... (per the High Court in Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at [9] and [10] (p 507)) for the Federal Court in respect of applications brought pursuant to s 476A of the Act. These propositions were expressly taken up and applied by Gleeson CJ and McHugh, Gummow and Heydon JJ in a joint judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 at [32] and [33] (p 198); [2004] HCA 50 ; (2004) 79 ALJR 94 (p 100) where their Honours said: The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not "bar an existing cause of action"; rather, "[i]t imposes a condition which is of the essence of a new right". [ Australian Iron & Steel Ltd v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488; Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at 507 8 [10] [11]; [1999] HCA 61 ; 167 ALR 105 at 107.] Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the parliament under ss 76(ii) and 77 (i) of the Constitution . The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding. The provision of information to the unsuccessful visa applicant by the RRT is a necessary step to equip the applicant with the wherewithal to institute such a proceeding in the Federal Court. Paragraph (a) of s 478(1) stipulates that an application to the Federal Court be made in the manner specified by the Rules. At the relevant time, those Rules [O 54B r 2(1)] required that an application be in accordance with form 56. This required the applicant to describe how he or she was aggrieved by the decision, the grounds for the application, and the orders sought. That information may be acquired for use in this way by an examination of the reasons of the RRT indicated in the written statement.


case_text: also respectfully agree with these observations made by his Honour and propose to follow the approach taken by his Honour in Johnson [2004] FCA 137 ; 136 FCR 494. This approach was expressly approved by a Full Court of this Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [49] to [56] (pp 247 249) and by Branson J in Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 at [31] and [32].


case_text: the present case, two Notices purporting to be notices under this section were given to the Attorneys-General of the States. No notice was required to be given to the Attorney-General of the Commonwealth because the Minister is a party to the proceedings (see s 78B(3)(b) and see Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44 ; (1969) 119 CLR 334 at 336 337). The first Notice is not now relied upon. The second Notice is dated 21 August 2008 and was filed in the Registry of the Court on 22 August 2008. It was served soon after. Every State (except Victoria) expressly declined to intervene. The State of Victoria has not expressly indicated a position, one way or the other. That State did not, however, seek leave to intervene in or be joined as a party to the proceedings.


case_text: order to deal with the applicant's argument, it is necessary to understand the statutory framework within which the decisions under challenge were made. French J, as he then was, summarised the relevant provisions at [20] to [25] (pp 503 505) in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494 as follows: The statutory basis for the Minister's decision is to be found in s 501(2) of the Migration Act which provides: '501(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.' This is to be read in conjunction with s 501(6) and s 501(7). Relevantly, those subsections provide: '501(6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); ... (7) For the purposes of the character test, a person has a substantial criminal record if: ... (c) the person has been sentenced to a term of imprisonment of 12 months or more; ...' As the present application raises the question whether or not the applicant was the holder of a 'absorbed persons visa' under the Act it is necessary to have regard to the provisions of the Act and Regulations relating to that class of visa. The Migration Act 1958 provided originally for entry into Australia to be regulated by entry permits to be granted by officers of the Department of Immigration (s 6(2)). Such permits could be cancelled by the Minister 'in his absolute discretion' (s 7(1)). The Act also provided for the deportation of aliens and immigrants under various conditions (ss 12 and 22). The Migration Legislation Amendment Act 1989 (Cth) enacted comprehensive amendments which included new provisions for the control of entry into Australia involving entry permits and visas. That system of control was succeeded by a visa-only system introduced by the Migration Reform Act 1992 (Cth) which was passed in November 1992. The relevant provisions of that amending legislation came into operation on 1 September 1994 for a more detailed account of this history see NAAV v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 193 ALR 499 at [386] to [393]. Under the Act as it stood prior to 1 September 1994, and by virtue of s 6(1) , an immigrant who entered Australia without an entry permit became a prohibited immigrant. Section 8 , however, relieved from the operation of those provisions an immigrant entering Australia without an entry permit being: '(e) A person who (i) is for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits; or (ii) is included in a class of persons who are for the time being so exempted not being a person in respect of whom a declaration is in force under the next succeeding subsection.' There was an exemption which applied to persons entering Australia from New Zealand who were not required to hold an entry permit. This means that at the time Mr Johnson and his family entered Australia they were not required to hold entry permits and were not prohibited immigrants. The effect of the amendments to the Act which came into operation on 1 September 1994 was that all non-citizens in the migration zone were required to hold a visa. Transitional provisions in relation to New Zealand citizens in Australia were provided for in regulations. Regulation 17 of the Migration Reform (Transitional Provisions) Regulations 1994 provided: '(1) This sub-regulation applies to a non-citizen who: (a) is a New Zealand citizen; and (b) either: (i) was in Australia lawfully immediately before 1 September 1994; or (ii) was, immediately before 1 September 1994 an illegal entrant because of s 20 of the old Act; and (c) is not taken to hold: (i) a transitional visa under Part 2 or 3; or (ii) a Norfolk Island permanent resident visa under regulation 18; or (iii) a sub-class 995 (Diplomatic) Visa under regulation 19; or (iv) a special purpose visa; or (v) an absorbed person visa; and (d) was not the subject of a deportation order immediately before 1 September 1994. (2) A non-citizen to whom this regulation applies is taken to have been granted a special category visa on 1 September 1994.' 25 Section 34 of the Migration Act provides: '34(1) There is a class of permanent visas to remain in, but not re-enter Australia, to be known as absorbed person visas. (2) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and (d) immediately before 1 September 1994, was not a person to whom s 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994. (3) Subdivisions AA, AB, AC (other than s 68) , AE and AH do not apply in relation to absorbed person visas.' I respectfully agree with and adopt his Honour's summary. At the time when the applicant and her mother entered Australia, neither of them was required to hold an entry permit and neither of them was a prohibited immigrant. Further, by reason of the amendments to the Act which came into operation on 1 September 1994, if the applicant did not thereby become the holder of an absorbed person visa , she was: taken to have been granted a special category visa on 1 September 1994. Thus, in the case of the applicant, by the operation of the amendments to the Act which came into force on 1 September 1994, she was either: (a) The holder of an absorbed person visa ; or (b) The holder of a special category visa . Despite the inconsistent positions adopted by the applicant, if the applicant did not hold an absorbed person visa at all times from 1 September 1994, then the delegate has purported to cancel a visa of a kind not held by the applicant at the time when the delegate's decision was made. In that event, the delegate will not have exercised the Minister's cancellation power with respect to the visa actually held by the applicant (per French J in Johnson [2004] FCA 137 ; 136 FCR 494 at [30] (pp 505 506). Such a purported exercise of that power in those circumstances would involve jurisdictional error because the delegate will not have addressed the actual question which s 501 of the Act required her to address. A decision infected by jurisdictional error of that kind would be wholly invalid and of no effect. If the hypotheses outlined in [166] above are correct, then the same reasoning would lead to a conclusion that the Tribunal has also committed jurisdictional error when it made its decision on 20 December 2007. It is therefore necessary to determine whether the applicant should be taken to have held an absorbed person visa as at 1 September 1994 and at all times thereafter. In Johnson [2004] FCA 137 ; 136 FCR 494 at [33] to [47] (pp 506 511) French J reviewed a number of authorities which dealt with the statutory criterion "... ceased to be an immigrant before 2 April 1984 ... " (s 34(2)(b) of the Act). At [45] to [47] (pp 510 511), his Honour said: The general statements made about the concept of absorption offer little in the way of practical guidance for determining whether a person has become part of the community, either as an adult or as a minor who comes in with a family unit. In Koon Wing Lau v Calwell , Dixon J said (at 577): "... there does not appear to be any general agreement as to the tests for the application of this very vague conception." The word "absorption" is an evaluative metaphor which invites consideration of a variety of factors relevant to its application. It is important to bear in mind also that it is a metaphor used in aid of the resolution of a question of constitutional fact, namely whether the person to whom it is applied has ceased to be an immigrant. The metaphor must not obscure the primary question. Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following: The time that has elapsed since the person's entry into Australia. The existence and timing of the formation of an intention to settle permanently in Australia. The number and duration of absences. Family or other close personal ties in Australia. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. Employment history. Economic ties including property ownership. Contribution to, and participation in, community activities. Any criminal record. This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one -- see generally D Wood, "Deportation, The Immigration Power and Absorption into the Australian Community" (1986) 16 Fed Law Rev 288. In the case of a child coming to Australia as part of a family unit it is necessary to apply the judgment about membership of the community to the child's parents or other adult guardians or carers with whom he or she has come and with whom he or she lives. At the time relevant to the present case Mr Johnson was aged nine years. It is therefore necessary to have regard to the evidence about his parents' migration to, and settlement in, this country and their position in April 1984. I also respectfully agree with these observations made by his Honour and propose to follow the approach taken by his Honour in Johnson [2004] FCA 137 ; 136 FCR 494. This approach was expressly approved by a Full Court of this Court in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at [49] to [56] (pp 247 249) and by Branson J in Charlie v Minister for Immigration and Citizenship (2008) 171 FCR 44 at [31] and [32]. A non-citizen who has lawfully entered Australia and has been absorbed into the Australian community ceases to be an immigrant and passes beyond the scope of the immigration power (per French J in Johnson [2004] FCA 137 ; 136 FCR 494 at [44] (p 510)). In this sense, the question of absorption involves the determination of a constitutional fact. In the present case, as I have already said, the applicant came to Australia with her mother on 28 September 1979. By 2 April 1984, the applicant had resided in Australia continuously for approximately four and a half years. By that date, she was almost six years old. I have already referred to the evidence concerning the question of whether the applicant's parents were living together as at September 1979 (as to which see [172] to [178] above). However, the applicant made statements, both to the delegate and to the Tribunal, about certain facts, matters and events which she could remember having taken place in the early years after her arrival in Australia. The broad thrust of that general evidence was that her parents were more or less together in the early years after their arrival in 1979. According to the applicant, the applicant, her parents and her siblings lived as a family unit in those years. The applicant also submitted that I should apply what her Counsel called an implied statutory bar of five years before an immigrant is capable of being absorbed into the Australian community. This submission was founded upon some remarks made by Deane J by way of obiter dicta in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 ; (1981) 54 FLR 334 . In my view, there is no such implied bar. French J in Johnson [2004] FCA 137 ; 136 FCR 494 did not invoke such a bar. The other members of the Court in Kuswardana 35 ALR 186 ; 54 FLR 334 itself did not expressly agree with the dictum of Deane J. In my view, the application of such a bar, as an inflexible rule, introduces into the consideration of the criterion found in s 34(2)(b) of the Act an unnecessary and inappropriate level of rigidity. For example, it would mean that in every case where the relevant non-citizen had arrived after 2 April 1979, a finding would need to be made that, by reason of this fact alone, absorption had not occurred. In my judgment, as a matter of construction of the Act, no implied probationary period is prescribed. Ground 5 (The Lack of Independent Mind Ground)


case_text: applicant also submitted that I should apply what her Counsel called an implied statutory bar of five years before an immigrant is capable of being absorbed into the Australian community. This submission was founded upon some remarks made by Deane J by way of obiter dicta in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 ; (1981) 54 FLR 334 . In my view, there is no such implied bar. French J in Johnson [2004] FCA 137 ; 136 FCR 494 did not invoke such a bar. The other members of the Court in Kuswardana 35 ALR 186 ; 54 FLR 334 itself did not expressly agree with the dictum of Deane J. In my view, the application of such a bar, as an inflexible rule, introduces into the consideration of the criterion found in s 34(2)(b) of the Act an unnecessary and inappropriate level of rigidity. For example, it would mean that in every case where the relevant non-citizen had arrived after 2 April 1979, a finding would need to be made that, by reason of this fact alone, absorption had not occurred. In my judgment, as a matter of construction of the Act, no implied probationary period is prescribed. Ground 5 (The Lack of Independent Mind Ground)


case_text: ground is based upon the reasoning of Emmett J in Lesuma v Minister for Immigration and Citizenship (No 2) (2007) 99 ALD 514; [2007] FCA 2106 especially at [30] to [36]. I do not think that this ground has been made out. A fair reading of the Tribunal's reasons as a whole demonstrates that it asked itself the right question, that is to say, that it put itself in the position of the primary decision-maker and exercised for itself the discretion reposed in it. In my view, it appropriately approached the decision which it was called upon to make as requiring it to decide whether or not to exercise the discretion to cancel. Therefore, in my view, the Tribunal did not fall into error. For these reasons, I am of the view that Ground 11 has not been made out.


case_text: Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 ; (2007) 159 FCR 565 (at [49]), a Full Court of this Court held that, for the purposes of s 477 of the Act, actual notification to an applicant of a decision of the Refugee Review Tribunal must be accomplished by physical delivery to the applicant personally of a written statement prepared by the Refugee Review Tribunal in accordance with s 430(1). The language of s 477(1) is relevantly identical to the language of s 477A(1). In the case of the Tribunal, the only statutory prescription for the giving of notification of its decision to a party to the proceedings before it is s 68AA. In terms of the reasoning applied by the Full Court in SZKKC [2007] FCAFC 105 ; 159 FCR 565 , that provision is a deeming provision. Applying the reasoning of the Full Court in that case, providing notice of the Tribunal's decision by post in accordance with s 68AA would be ineffective for the purposes of s 477 and also for the purposes of s 477A. No regulations have been passed which prescribe the manner in which a decision is to be notified for the purposes of s 477A (as to which, see s 477A(4)). Therefore, what is required in the present case for the notification required by s 477A is that a hard copy of the Tribunal's decision must be physically handed to the applicant personally. As I have already said (at [31] and [36] above), on the evidence before me, the Minister has failed to prove that a hard copy of the Tribunal's decision was ever handed to the applicant personally. Therefore, the Minister's objection to competency fails.


case_title: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236


case_text: 476A was introduced into the Act by Act No 137 of 2005 and came into force on 1 December 2005. At the same time, s 5E was added. These two sections were intended to address the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. In that case, the High Court held that, for the purposes of the Act, the expression "... decision made under the [Migration] Act ... " did not include a decision which was infected by jurisdictional error. In that case, the Court referred to such decisions as "... decisions purportedly made under the Act ... ". It may be that the effect of the 2005 amendments to the Act is to deprive s 39B of the Judiciary Act of any role to play in the judicial review by this Court of migration decisions and to confine applicants who seek such relief to the remedies provided by s 476A of the Act. In the present case, for reasons which I will explain below, I do not need to decide this question and expressly refrain from doing so. I will proceed to deal with the jurisdiction question upon the basis that the remedies potentially available to the applicant are confined to those afforded by s 476A of the Act. Section 477A is in the following terms: 477A Time limits on applications to the Federal Court (1) An application to the Federal Court for a remedy to be granted in exercise of the court's original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (2) The Federal Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Court is satisfied that it is in the interests of the administration of justice to do so. (3) Except as provided by subsection (2), the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. (4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.


case_title: Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500


case_text: decision sought to be attacked by the applicant is a decision of the Tribunal. It is a decision of an administrative character. It was made pursuant to the provisions of s 500(1)(b) of the Act and was thus a decision "... made under the Act ...". For the purposes of the Act, the decision of the Tribunal was clearly a privative clause decision (see s 5(1) and s 474(2) of the Act) or a purported privative clause decision. (See s 5(1) and s 5E of the Act. See also Shuster v Minister for Immigration and Citizenship [2008] FCA 215 ; (2008) 167 FCR 186 at [5] , [13], [20], [26] and [28].) Section 474(1) of the Act is in the following terms: 474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Notwithstanding the provisions of s 474(1), s 476A of the Act invests this Court with limited original jurisdiction if (inter alia): the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500


case_title: WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 ; (2004) 79 ALJR 9

case_text: propositions were expressly taken up and applied by Gleeson CJ and McHugh, Gummow and Heydon JJ in a joint judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 at [32] and [33] (p 198); [2004] HCA 50 ; (2004) 79 ALJR 94 (p 100) where their Honours said: The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not "bar an existing cause of action"; rather, "[i]t imposes a condition which is of the essence of a new right". [ Australian Iron & Steel Ltd v Hoogland [1962] HCA 13 ; (1962) 108 CLR 471 at 488; Rudolphy v Lightfoot [1999] HCA 61 ; (1999) 197 CLR 500 at 507 8 [10] [11]; [1999] HCA 61 ; 167 ALR 105 at 107.] Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the parliament under ss 76(ii) and 77 (i) of the Constitution . The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding. The provision of information to the unsuccessful visa applicant by the RRT is a necessary step to equip the applicant with the wherewithal to institute such a proceeding in the Federal Court. Paragraph (a) of s 478(1) stipulates that an application to the Federal Court be made in the manner specified by the Rules. At the relevant time, those Rules [O 54B r 2(1)] required that an application be in accordance with form 56. This required the applicant to describe how he or she was aggrieved by the decision, the grounds for the application, and the orders sought. That information may be acquired for use in this way by an examination of the reasons of the RRT indicated in the written statement. At [9] and at [37] in WACB (210 ALR at 193 and 199; 79 ALJR at 96 and 101), the majority emphasised that the Minister bore the burden of establishing lack of competency. In order to make such findings of fact as may be required for the purpose of determining whether the applicant's application is competent or not, and for determining the applicant's latest application for leave to amend her originating process, I have found it necessary to read and to consider all of the documents in the Court file (including the transcript of directions hearings and including those documents which evidence communications between Registry staff, on the one hand, and the applicant and persons assisting her, on the other hand). I will make clear in the next section of these Reasons what regard (if any) I have paid to this material. The Procedural History of the Present Proceedings The Tribunal's decision is dated 20 December 2007 and was handed down on that day. As I have already said, there is no first-hand evidence before me as to whether and, if so, when and in what manner that decision was actually notified to the applicant. In particular, there is no evidence from a witness or in the materials before me that the applicant attended before the Tribunal on 20 December 2007 or that she was handed a physical or hard copy of the Tribunal's decision or reasons on that day or, indeed, at any other time. The evidence before me is silent as to these matters. There are documents in the Court file which provide a basis for drawing certain inferences as to the course of events which have led to the present application before me. However, in my judgment, that material does not provide any reliable foundation for drawing an inference that the applicant was ever handed by anyone by way of physical delivery a copy of the Tribunal's decision or of its reasons. I will now set out my reasons for this conclusion. In WACB [2004] HCA 50 ; 210 ALR 190 ; 79 ALJR 94 , the High Court held that similar words in s 478 of the Act (in the form in which it stood before 2001), when applied to a decision of the Refugee Review Tribunal made pursuant to the Act, required the physical delivery to the applicant personally of the written statement (ie a hard copy thereof) which the Refugee Review Tribunal was required to prepare and to give to the parties pursuant to s 430(1) of the Act.


case_text: history of this matter, and another related matter, are described in the judgment of Finn J in Futuris Corporation Limited (ACN 004 336 636) v Commissioner of Taxation [2006] FCA 1096 relevantly at [2]-[10]. I respectfully adopt his Honour's description. I do not need to refer to those background facts further. For present purposes, it is sufficient to set out the pleadings and subsequent correspondence giving rise to the present application for particulars. On 15 December 2006, the applicant filed its Statement of Grounds. At paragraph 39 of the Statement of Grounds, the applicant set out the background to the applicant's tax return for the year of income ended 30 June 1998: On or about the 7 December 1998 Futuris, being a relevant entity within the meaning of Division 1B of Part VI of the ITAA 1936, furnished a return in respect of the year of income ended 30 June 1998 ("the 1998 Return"). Futuris specified in the 1998 Return: 39.1 that it had a taxable income of: $86,088,045.00 39.2 that tax payable on that taxable income was: $30,991,696.20 On 23 March 2007, the respondent filed its "Response to the Applicant's Statement of Grounds" (the Response). At paragraph 32 of the Response, the respondent pleaded: The Commissioner admits the allegations in paragraph 39 of the Applicant's Statement and says further that:- (a) the taxable income of $86,088,045 ("the declared amount") understated the taxable income for the 1998 year by $82,950,090 ("the understated amount") and the amount of $30,991,696.20 is the gross tax on the declared amount; (b) the understated amount was described in the 1998 return as "Division 19A Value Shift". The applicant submitted that, in most circumstances, it is unlikely that an issue will arise as to the alternative postulate, but submitted that the present circumstances are different because they involve a factually complicated arrangement leading up to the ultimate sale of the entity called Walshville, as described by Finn J in Futuris Corporation Limited (ACN 004 336 636) v Commissioner of Taxation [2006] FCA 1096 referred to above.


case_text: support of its contentions, the applicant referred to Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 ( Peabody's Case ), in particular at 385 where the nature of a "reasonable expectation" for the purposes of s 177C was described by the High Court as follows: A reasonable expectation requires more than a possibility. It involves a prediction as to events which would have taken place if the relevant scheme had not been entered into or carried out and the prediction must be sufficiently reliable for it to be regarded as reasonable. The applicant placed emphasis on the requirement of a "prediction". The applicant also referred to Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 where Gummow and Hayne JJ, when interpreting the similar provision s 177C(1)(b), said at [66]: In the present matters, the respondents would obtain a tax benefit if, in the terms of s 177C(1)(b), had the scheme not been entered into or carried out, the deductions "might reasonably be expected not to have been allowable". When that is read with s 177D(b) it becomes apparent that the inquiry directed by Pt IVA requires comparison between the scheme in question and an alternative postulate. To draw a conclusion about purpose from the eight matters identified in s 177D(b) will require consideration of what other possibilities existed. The applicant submitted that in order to make such a comparison, the Commissioner would have needed to identify an alternative postulate, and that identifying what would have occurred had the scheme not been entered into, ie the alternative postulate, is a critical element in contending whether a tax benefit arose.


case_text: support of its contentions, the applicant referred to Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 ( Peabody's Case ), in particular at 385 where the nature of a "reasonable expectation" for the purposes of s 177C was described by the High Court as follows: A reasonable expectation requires more than a possibility. It involves a prediction as to events which would have taken place if the relevant scheme had not been entered into or carried out and the prediction must be sufficiently reliable for it to be regarded as reasonable. The applicant placed emphasis on the requirement of a "prediction". The applicant also referred to Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 where Gummow and Hayne JJ, when interpreting the similar provision s 177C(1)(b), said at [66]: In the present matters, the respondents would obtain a tax benefit if, in the terms of s 177C(1)(b), had the scheme not been entered into or carried out, the deductions "might reasonably be expected not to have been allowable". When that is read with s 177D(b) it becomes apparent that the inquiry directed by Pt IVA requires comparison between the scheme in question and an alternative postulate. To draw a conclusion about purpose from the eight matters identified in s 177D(b) will require consideration of what other possibilities existed. The applicant submitted that in order to make such a comparison, the Commissioner would have needed to identify an alternative postulate, and that identifying what would have occurred had the scheme not been entered into, ie the alternative postulate, is a critical element in contending whether a tax benefit arose. The applicant also referred to Federal Commissioner of Taxation v Lenzo [2008] FCAFC 50 ; (2008) 167 FCR 255 ( Lenzo's Case ), where Sackville J noted at [120]: Since any tax benefit identified must be related to a scheme, as must any conclusion of a dominant tax avoidance purpose, the identification of the scheme and of the tax benefit is of central importance to the operation of Pt IVA: Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 at 223.


case_text: applicant also referred to Federal Commissioner of Taxation v Lenzo [2008] FCAFC 50 ; (2008) 167 FCR 255 ( Lenzo's Case ), where Sackville J noted at [120]: Since any tax benefit identified must be related to a scheme, as must any conclusion of a dominant tax avoidance purpose, the identification of the scheme and of the tax benefit is of central importance to the operation of Pt IVA: Federal Commissioner of Taxation v Hart (2004) 217 CLR 216 at 223.


case_text: reference was made to Bailey v Federal Commissioner of Taxation [1977] HCA 11 ; (1977) 136 CLR 214 ( Bailey's Case ), where an application was made for particulars in the context of the predecessor of Part IVA , and the taxpayer requested particulars of the "arrangement" upon which the Commissioner's use of s 260 was based, but the Commissioner refused to supply them. It was held that the Supreme Court had power to order the Commissioner to give particulars of the "arrangement", and that such particulars should be given in the circumstances. The applicant relied on Bailey's Case , particularly at 230 where Aickin J referred with apparent approval to the decision in Tomlinson v Federal Commissioner of Taxation (1974) 23 FLR 314 where Jeffrey J concluded that in the exercise of its discretion the court will give paramountcy to the principle that the appellant should have the fullest particulars necessary to him to enable him to appraise the case which he has to disapprove and should have access to documents necessary for the proof by him of this case. With a general proposition expressed in those general terms I would respectfully agree.


case_title: Tomlinson v Federal Commissioner of Taxation (1974) 23 FLR 314


case_text: the respondent noted that the decision of the High Court in relation to the challenge to the Commissioner's Part IVA determination was handed down on 31 July 2008: Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32. On the programming orders that have been made to date in this proceeding, the evidence is filed, save for any responding evidence of the applicant. The matter is set down for hearing in a little over five weeks. The respondent submitted that the proximity to hearing should be a factor considered in the exercise of the discretion whether to order further and better particulars.


case_text: is a fundamental principle that a party is entitled to be informed about the opponent's case with sufficient clarity and particularity to allow that party a fair opportunity to meet the case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. The object of requiring a party to give particulars is to limit any generality in the pleadings, so as to inform the party's opponent of the nature of the case which that party must meet, and to prevent the opponent from being taken by surprise at the trial. The provision of appropriate particulars also means that unnecessary expense to the parties is avoided either in pre-trial preparation or at the hearing. The Court has power to order the furnishing of further and better particulars, whether pursuant to its inherent jurisdiction, or pursuant to Order 12 rule 5 of the Federal Court Rules . The question is whether in the circumstances that power should be exercised. The issues in the proceeding will be whether the applicant obtained a "tax benefit", and if it did, whether it could be concluded that the relevant scheme was entered into or carried out for the dominant purpose of obtaining a tax benefit.


case_text: note that this approach was described by Sackville J in Lenzo's Case , and that an application for special leave to appeal to the High Court in that case was refused: Lenzo v Commissioner of Taxation [2008] HCATrans 371 (12 November 2008). In my view, the applicant is not entitled to further and better particulars of the respondent's case which it seeks. In any event, if the applicant were entitled to the sort of particulars that it seeks, the respondent has provided them. It has identified the amount of the tax benefit, and the detailed transactions by which it alleges the tax benefit was obtained. The respondent has provided all the particulars that it could sensibly be expected to provide in relation to the obtaining of a tax benefit.


case_text: The shares of Alinta's predecessor were first listed for quotation on Australian Securities Exchange Limited (ASX) in 2000. Following approval by the Court on 9 October 2006 ( In the matter of The Australian Gas Light Company (No 2) (2006) 60 ACSR 406) of a scheme of arrangement between Alinta's predecessor and its members, the shares in Alinta were also listed for quotation by the ASX. The scheme of arrangement of October was interdependent with another scheme of arrangement involving the Australian Gaslight Company (AGL). The assets of AGL included interests in Australian Pipeline Trust (APT). As a result of the October schemes of arrangement, Alinta has interests in energy producing and energy infrastructure enterprises including AGL's and other interests in APT. 3 In January 2007, Alinta announced that it had received an approach concerning a potential management buy-out proposal by a group of senior executives. Alinta's board then initiated a competitive process by which potentially interested parties were invited to put forward expressions of interest to acquire Alinta or interests of Alinta. Proposals were received on 23 March 2007 from two consortia, described as Macquarie Bank Consortium, and a consortium formed by a joint venture of Babcock & Brown International Pty Limited (Babcock & Brown) and Singapore Power International Pty Limited (Singapore Power). The latter consortium (The Babcock-Singapore Consortium) formed ES&L Pty Limited (the Bidder), as the vehicle for the furtherance of their proposal. Following negotiations with both the Macquarie Bank Consortium and the Babcock-Singapore Consortium, a Scheme Implementation Agreement was entered into between Alinta, the Bidder, Babcock & Brown and Singapore Power, under which the Bidder was to acquire the entire issued share capital of Alinta (the Original Agreement). 4 A public announcement was made by Alinta on 30 March 2007 concerning the Original Agreement. On 4 May 2007, Macquarie Bank Consortium submitted a revised proposal to Alinta. In response, the Babcock-Singapore Consortium submitted a revised proposal. The latter revised proposal also involved three managed funds connected with Babcock & Brown. The three managed funds (the Funds) are: • Babcock & Brown Infrastructure Group, comprising Babcock & Brown Infrastructure Limited and Babcock & Brown Infrastructure Trust. • Babcock & Brown Power comprising Babcock & Brown Power Limited and Babcock & Brown Power Trust. • Babcock & Brown Wind Partners, comprising Babcock & Brown Wind Partners Limited, Babcock & Brown Wind Partners Bermuda Limited and Babcock & Brown Wind Partners Trust.


case_text: I find the evidence of the applicant's boyfriend to be of no assistance to me in determining whether the applicant was fit enough to attend Court on the morning of 12 October 2007, given the lack of time he appears to have spent with the applicant around the time when the hearing was due to take place and the fact that his evidence really only repeats what the applicant said to him rather than expresses his own observations on the applicant's alleged condition at the times when he did see her. Consequently, I find that the applicant has not demonstrated a satisfactory explanation for her failure to attend the hearing which was listed on 12 October 2007. 15 Applications for leave to appeal may be heard either by a Full Court or by a single judge: s 25(2)(a) Federal Court of Australia Act 1976 (Cth). The principles relevant to a grant of leave are not in doubt, the root authority being Décor Corp v Dart Industries Inc (1991) 3 FCR 397. Those principles are, firstly, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being considered by the Full Court and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. Later in time and in the context of an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application for the judicial review of a decision of the Tribunal, Hely J remarked in NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 at [12] that an applicant "had to show an arguable case that the RRT's decision should be quashed on the grounds of jurisdictional error". 16 Whether a judgment is interlocutory, rather than final, and hence requires a grant of leave to appeal by virtue of s 24(1A) of the Federal Court of Australia Act is sometimes a question of considerable nicety. It is the legal effect of a judgment, rather than its practical effect, that is determinative of the question whether a judgment is final or interlocutory.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: As to the question of an order extending time, the Full Court observed in Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] : "Although such an order is made in the exercise of a very wide discretion, casual disregard of the requirements of the Rules is inappropriate. Some good reason should therefore be shown to dispense with the requirement to file an application for leave to appeal within 21 days" . In that case, the Full Court noted that the effect of the Rules was that, had the judgment below been final, not interlocutory, the granting of an extension of time within which to appeal would have required "special reasons" to be shown. In that regard, the Full Court drew attention to the observations which had been made in relation to that requirement by an earlier Full Court in Jess v Scott (1986) 12 FCR 187.


case_outcome: considered

case_text: The present case nicely illustrates the point. The refusal by the Federal Magistrates Court on 12 November 2007 to set aside the order of dismissal made on 12 October 2007 and to reopen the proceeding for the judicial review of the Tribunal's decision did not have the legal effect of finally determining as between the Applicant and the Minister the merits of that proceeding. However, the practical effect of the refusal to reopen was to leave in place the order of dismissal of the challenge to the Tribunal's decision. That, in turn, had the practical effect of leaving standing the decision of the Tribunal affirming the refusal to grant the Applicant a protection visa. An appreciation of the practical effect that some, strictly interlocutory judgments may nonetheless have led Branson J in Johnston v Comcare [2002] FCAFC 251 ; (2002) 124 FCR 160 at [8] to observe that leave to appeal is more readily granted where a decision, if allowed to stand, will have "the practical effect" of determining a claim of an applicant to be entitled to an order, rather than in a case concerning practice and procedure only. I have approached the question of whether to grant leave in this case with this sentiment in mind.


case_title: NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659


case_text: As to the question of an order extending time, the Full Court observed in Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] : "Although such an order is made in the exercise of a very wide discretion, casual disregard of the requirements of the Rules is inappropriate. Some good reason should therefore be shown to dispense with the requirement to file an application for leave to appeal within 21 days" . In that case, the Full Court noted that the effect of the Rules was that, had the judgment below been final, not interlocutory, the granting of an extension of time within which to appeal would have required "special reasons" to be shown. In that regard, the Full Court drew attention to the observations which had been made in relation to that requirement by an earlier Full Court in Jess v Scott (1986) 12 FCR 187. 19 The Full Court in Nguyen seems to have been of the view that it would be incongruous not to adopt a similar approach to the granting of an extension of time within which to apply for leave to appeal to that required in relation to the granting of an extension of time within which to appeal. That said, the Full Court (at [27]) rejected the adoption of any narrow, pedantic approach to the granting of an extension of time. In the circumstances of that case, the Full Court regarded it as preferable to deal with the application by reference to the prospects of any appeal rather than by considering whether such delay as had occurred justified the refusing of an extension of time.