case_text: Franks and Others v Western Australiaand Others [2006] FCA 1811 (21 December 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1811 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Arnold Franks and Others v Western Australiaand Others [2006] FCA 1811 (21 December 2006) Last Updated: 11 January 2007 FEDERAL COURT OF AUSTRALIA Arnold Franks and Others v State of Western Australia and Others [2006] FCA 1811 NATIVE TITLE mediation court supervision of mediation process mediation protocols and programs delays resource and staffing limitations of representative body specific orders proposed by National Native Title Tribunal power of Court to make specific orders orders made accordingly Native Title Act 1993 (Cth) s 86A and 86B Federal Court of Australia Act 1976 (Cth) s 23 Frazer v Western Australia [2003] FCA 351 ; (2003) 128 FCR 458 cited ARNOLD FRANKS AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS WAD6273 OF 1998, WAD6193 OF 1998, WAD6236 OF 1998, WAD6212 OF 1998, WAD6194 OF 1998, WAD6161 OF 1998, WAD6136 OF 1998, WAD6132 OF 1998, WAD6123 OF 1998, WAD6119 OF 1998, WAD6033 OF 1998, WAD6006 OF 2001, WAD6002 OF 2004, WAD6001 OF 2000, WAD286 OF 2004, WAD131 OF 2004 FRANK FRENCH AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS WAD82 OF 1998, WAD8 OF 2005, WAD6173 OF 1998, WAD6051 OF 1998, WAD6090 OF 1998, WAD6280 OF 1998, WAD6096 OF 1998, WAD6285 OF 1998, WAD6278 OF 1998, WAD6287 OF 1998, WAD6007 OF 2000, WAD6007 OF 2001, WAD126 OF 2005, WAD6005 OF 2003, WAD78 OF 2005, WAD293 OF 2005, WAD127 OF 1997, WAD6256 OF 1998 FRENCH J 21 DECEMBER 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD6273OF 1998, WAD 6193 OF 1998 WAD6236 OF 1998 WAD6212 OF 1998 WAD6194 OF 1998 WAD6161 OF 1998 WAD6136 OF 1998 WAD6132 OF 1998 WAD6123 OF 1998 WAD6119 OF 1998 WAD6033 OF 1998 WAD6006 OF 2001 WAD6002 OF 2004 WAD6001 OF 2000 WAD286 OF 2004 WAD131 OF 2004 BETWEEN: ARNOLD FRANKS AND OTHERS Applicants AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondents JUDGE: FRENCH J DATE OF ORDER: 21 DECEMBER 2006 WHERE MADE: PERTH IN EACH OF THE ABOVE APPLICATIONS THE COURT ORDERS THAT: 1. The National Native Title Tribunal is requested, on or before 19 January 2007, in consultation with the parties, to file a minutes of proposed orders to give effect to these reasons to the extent that they are applicable to the application. 2. The directions hearing is adjourned to 29 June 2007 at 9am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD82 OF 1998 WAD8 OF 2005 WAD6173 OF 1998 WAD6051 OF 1998 WAD6090 OF 1998 WAD6280 OF 1998 WAD6096 OF 1998 WAD6285 OF 1998 WAD6278 OF 1998 WAD6287 OF 1998 WAD6007 OF 2000 WAD6007 OF 2001 WAD126 OF 2005 WAD6005 OF 2003 WAD78 OF 2005 WAD293 OF 2005 WAD127 OF 1997 WAD6256 OF 1998 BETWEEN: FRANK FRENCH AND OTHERS Applicants AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondents JUDGE: FRENCH J DATE OF ORDER: 21 DECEMBER 2006 WHERE MADE: PERTH IN EACH OF THE ABOVE APPLICATIONS THE COURT ORDERS THAT: 1. The National Native Title Tribunal is requested, on or before 19 January 2007, in consultation with the parties, to file a minute of proposed orders to give effect to these reasons to the extent that they are applicable to that application. 2. The directions hearing is adjourned to 29 June 2007 at 9am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6273 OF 1998 WAD6193 OF 1998 WAD6236 OF 1998 WAD6212 OF 1998 WAD6194 OF 1998 WAD6161 OF 1998 WAD6136 OF 1998 WAD6132 OF 1998 WAD6123 OF 1998 WAD6119 OF 1998 WAD6033 OF 1998 WAD6006 OF 2001 WAD6002 OF 2004 WAD6001 OF 2000 WAD286 OF 2004 WAD131 OF 2004 BETWEEN: ARNOLD FRANKS AND OTHERS Applicant AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD82 OF 1998 WAD8 OF 2005 WAD6173 OF 1998 WAD6051 OF 1998 WAD6090 OF 1998 WAD6280 OF 1998 WAD6096 OF 1998 WAD6285 OF 1998 WAD6278 OF 1998 WAD6287 OF 1998 WAD6007 OF 2000 WAD6007 OF 2001 WAD126 OF 2005 WAD6005 OF 2003 WAD78 OF 2005 WAD293 OF 2005 WAD127 OF 1997 WAD6256 OF 1998 BETWEEN: FRANK FRENCH AND OTHERS Applicants AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondents JUDGE: FRENCH J DATE: 21 DECEMBER 2006 PLACE: PERTH REASONS FOR DIRECTIONS ON GERALDTON AND PILBARA REGIONAL DIRECTIONS HEARINGS Introduction 1 On 18 and 15 December 2006 the Court convened directions hearings in respect of native title determination applications in the Geraldton and Pilbara regions of Western Australia respectively. These hearings related to cases which are the subject of mediation referrals by the Court to the National Native Title Tribunal (the Tribunal). The cases are in the Court's "Provisional Docket" which is the class of native title determination proceedings under mediation and not requiring imminent programming to trial. When it is thought appropriate to submit an application to closer judicial case management with a view to its progress to trial or other disposition, it is generally allocated out of the provisional docket to the "Substantive" docket of a judge designated for that purpose. 2 A chronic problem of delay has arisen in the mediation of native title determination applications in the various regions of Western Australia. The delays are largely due to limitations on both the human and financial resources available to carry out the necessary work. Those limitations affect representative bodies, the applicants they represent, unrepresented applicants, the State Government and other respondents. The greatest difficulties have been associated with the resolution of overlaps between native title determination applications and the preparation, by or on behalf of applicants, of materials sufficient to satisfy the State Government of the relationship with the area of land or waters under claim necessary to support a native title determination. The provision of so-called "connection material" typically involves the services of an anthropologist to research the particular claim group, its traditional laws and customs and the nature of the connection of the group to the land and waters in question under those traditional laws and customs. That work may involve the collation of research literature and extensive field investigations. The amount of time required is substantial and may extend for many months and sometimes in excess of a year. There is a limited number of suitably qualified anthropologists available to carry out such work. Preparation of connection material may also involve the collation of historical, archaeological and linguistic evidence. Under the current practice of the State Government of Western Australia, connection material, when submitted to it, is assessed by an expert engaged by the State. The process of assessment is outlined in a document published, in October 2004, by the Office of Native Title of the State of Western Australia entitled "Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title". 3 The mediation of native title determination applications is primarily a matter for the Tribunal. That priority is reflected in ss 86A and 86B of the Native Title Act 1993 (Cth) (the Act). The role of the Tribunal in mediation was heightened by the amendments made to the Act in 1998. They introduced a far more detailed regime for the mediation of native title determination applications than had previously been the case. Every such application must be referred to the Tribunal for mediation unless the Court orders otherwise (ss 86B(1) and (2)). The role of the Tribunal is reinforced by the Federal Court's facility to request it to provide reports on the progress of any mediation (s 86E). That role covers the process of information exchange of which the provision of connection material to the State is an important element. 4 In Frazer v Western Australia [2003] FCA 351 ; (2003) 128 FCR 458 at 466 I observed that: 'The referral under s 86B is a referral to the NNTT and, in my opinion, it has the responsibility, pursuant to that referral, to undertake mediation of all aspects of the application relevant to the purposes defined in s 86A. This includes the development of detailed negotiation protocol, the exchange of information between the parties, the identification of issues to be resolved and times and venues of conferences under the Act in furtherance of the mediation process. In so doing it is quite legitimate that the NNTT and the parties have regard to the resource limitations and other practical constraints under which each of them must operate. It is appropriate that within a particular region timetables may be staggered to reflect priorities within that region. It is legitimate for the protocols and timetables developed to provide for bilateral negotiations between parties with a report back to the NNTT. However, timetables for such bilateral discussions are an element of the mediation process undertaken by the NNTT in the exercise of its statutory function and in respect of which it may be required to report to the Court.' In that case it was made clear that the provision of connection evidence between applicants and State is neither outside nor antecedent to the mediation process but an aspect of it (at [27]). 5 Shortly prior to publishing the decision in Frazer I made orders in relation to the Pilbara and Geraldton regions providing for the development of mediation timetables. The form of orders was along the lines of those made in Frazer (at [33[). They required the preparation by the applicants, overlapping applicants and the State of a program setting out a timetable for the exchange of information and specific issues to be negotiated. It was also directed that there be a detailed timetable including proposed meeting dates and venues set in a regional context and an outline of a negotiating protocol to be adopted by the State and the applicant. The parties were told that they had to lodge a copy of the relevant programs at the Court. Absent any agreement on such a program in a particular application, the applicant and any other interested parties were required to show cause why the application should not be referred to a substantive docket judge. In both the Geraldton and Pilbara regional areas mediation protocols and timetables were established pursuant to the Court's orders and have not been adhered to. Maps are attached to these reasons showing the claims in the two regions and charts provided by the Tribunal of the progress and anticipated progress of existing mediation protocols. 6 Directions were given on 1 August 2006 that the representative body for the Geraldton and Pilbara regions, the Yamatji Land and Sea Council (Yamatji), provide a report at the adjourned directions hearing on the feasibility of a single connection report covering a number of applications in the area as a means of progressing their resolution. Those applications are Budina (WAD131/2004), Malgana (WAD6236/1998), Nanda (WAD6136/1998), Thudgari (WAD6212/1998) and Gnulli (WAD6161/1998). 7 In its regional reports to the Court dated 18 and 15 December 2006, relating to the Geraldton and Pilbara regions respectively, the Tribunal has informed the Court of significant non-compliance with the mediation protocols agreed between the State and the representative body in each case. Of 16 applications in the Geraldton region, nine have current mediation protocols and six have not been complied with. Of the 24 applications in the Pilbara region, 17 have current mediation protocols. Ten of those have not been complied with. In each case the Tribunal has expressed the view that parties must adopt a more rigorous adherence to the protocols if applications in the region are to be resolved within reasonable timeframes. It submitted to the Court that if by the time of the next directions hearing parties are unable to comply with the timeframes agreed in the mediation protocols, the Court should consider replacing them with programming orders. The Tribunal has proposed draft orders for applications grouped according to subregions which it has defined within each of the regions. It submitted that the draft orders were intended to expedite the resolution of applications with a particular focus on overlaps. I am prepared to make orders in the terms proposed by the Tribunal on the basis that closer support and engagement by the Tribunal with the parties offers more promise for progress than reliance upon the existing mediation protocol. It is important, however, to note that those protocols should not be regarded as displaced by the orders which I propose to make.


case_outcome: cited

case_text: The factual context of, and the general legal issues arising out of, Mr Clarkson's complaints about the failure to investigate the circumstances of his incarceration as a federal offender in a State prison have been outlined in my judgment in Clarkson v Commonwealth of Australia [2006] FCA 1348. 2 I have already dismissed his claims against four of the six respondents. Two remain, one relating to the Commonwealth Ombudsman, the other to the Human Rights and Equal Opportunity Commission ("HREOC"). 3 The application against the Ombudsman is bought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("AD(JR) Act") and challenges alleged decisions of the Ombudsman not to investigate three matters. These are: "1. The decision made not to investigate the actions taken by Correctional Officers at Junee CC to sabotage the appeals and education of the Applicant. 2. The decision made not to investigate the failure of the Commonwealth to monitor the administration of sentences served by Federal Offenders. 3. The decision made not to investigate the failure of the Commonwealth to amend the 1990 Commonwealth/State NSW Agreement to include terms designed ensure compliance with the ICCPR Protocols and otherwise according to law."


case_title: S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143

case_text: In my earlier decision I indicated at par 22 that I was prepared to accept, for the purposes of this application, that notwithstanding the Arrangement, the Commonwealth may nonetheless retain tutelary responsibilities towards federal offenders in State prisons which might in exceptional circumstances found a claim in tort: cf S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 ; (2005) 143 FCR 217; or for injunctive or mandatory orders against the Commonwealth. 10 There are several difficulties with the review sought of this decision. It is not apparent that the failure alleged related to a matter of administration being action taken by a department or by a prescribed authority. At best it seems to relate to a residual responsibility formally vested in the Governor-General as a party to the Arrangement or else to the Commonwealth acting through the relevant portfolio Minister. In either circumstance the matter does not fall within the jurisdiction of the Ombudsman to investigate. 11 I should add notwithstanding my reference to a residual tutelary responsibility in the Commonwealth, there is nothing in the material that has been filed by Mr Clarkson which, in my view, could properly be said to come near to exciting a duty in the Commonwealth to monitor his circumstances or for that matter the administration of sentences served by federal offenders. I will order that the application as against the third respondent be dismissed.


case_text: express exception set forth in the Act is s 25(2B)(bc) which permits the Court to " vary or set aside an order " made pursuant to s 25(2B)(bb), namely an order dismissing an appeal by reason of an appellant's failure to attend a hearing relating to the appeal. That power is a power conferred " in general terms " and " should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament ": SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [20] , 158 FCR 292 at 298 per Black CJ, Weinberg and Allsop JJ. As contemplated in SZISM, the power conferred by s 25(2B)(bc) is a power which can be exercised even after the orders have been entered. See also: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [1] ; Brannan v Minister for Immigration and Citizenship [2007] FCA 1900 at [3] ; SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462 at [2] .


case_text: A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances ": D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [34] , [2005] HCA 12 ; 223 CLR 1 at 17. There must be finality in litigation: Burrell v The Queen [2008] HCA 34 , 248 ALR 428.


case_outcome: considered

case_text: has further been suggested that the Court has limited power to make " supplemental orders ": Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224. Lee, Hill and Cooper JJ there observed at 234 to 236: There is no doubt that the common law rule is that once a judgment of the Court has been passed and entered, the Court thereafter lacks power to make an order which alters or sets aside that judgment. The only remedy in such a case for a dissatisfied litigant is, where available, an appeal: Re St Nazaire Co (1879) 12 Ch D 88 ; Re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693 at 697 per Fry LJ and at 698 per Lopes LJ; and cf Gamser v Nominal Defendant. The general rule admits to certain exceptions but these are, so the respondent submits "severely circumscribed". One such exception is the "slip rule": see L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59 ; (1982) 151 CLR 590 ; another exception is fraud and a third relates to self-executing orders. None of these is relied on in the present case. Order 35, r 7 of the Federal Court Rules sets out exceptions to the general rule that the court will not vary or set aside judgments. These examples largely reflect the common law position. None is here relevant. However, Caboolture relies upon what is said to be the power of courts to make supplemental orders where circumstances make it necessary so to do. That in an appropriate case a supplemental order may be made after judgment is entered, is clear from Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141. The true principle was expressed in that case by Lord Lindley (at 143-144) as follows: This is not an application to alter an order on the ground of some slip or oversight. Nor is it a case in which the order has not been drawn up. Here the order has been drawn up, and it expresses the real decision of the court; and that being so, the Court has no jurisdiction to alter it. If this summons had proceeded on the theory that the order of the 11 th of July was right, and that circumstances had since occurred which had rendered a supplemental order necessary, the Court might have entertained the application; but this summons proceeds on the theory that the order of 11 July is wrong. In my opinion, it is of the utmost importance, in order that there may be some finality in litigation, that when once the order has been completed it should not be liable to review by the judge who made it. Critical to the jurisdiction of the Court is first that the application not be one in any way to vary or alter the initial order. The present application does not seek to do this. It is, in the sense used in the cases, a supplemental order. ... The principle behind denying the right of a court to vary or alter a judgment regularly given and entered is the need for finality of litigation. The Court has adjudicated upon the facts of the claim brought by a plaintiff against a defendant, found for one side and entered the relevant judgment. Neither the facts nor the law are to be agitated again, save on an appeal. But the issues involved where a claim is made against a solicitor for costs by a party to the litigation have not been determined by the judgment which has been entered. They remain yet to be resolved. The power to make such " supplemental orders ", it will be noted, is not a power " to vary or alter a judgment regularly given ...". The revocation of the July 2007 Order certainly cannot be characterised as " supplemental orders ". No other source of power to vary or revoke the order as made in July 2007 has been identified.


case_text: order, once made and entered, is normally final. In DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 , the High Court held that the Full Court of the Family Court did not have power to re-open final orders after their entry. And, in reliance upon that decision, in Pantzer v Wenkart [2007] FCAFC 27 at [5] , Black CJ observed that it was " hard to see ... how, in the face of DJL v The Central Authority , there can be any foundation for the contention that the Full Court of the Federal Court has power to re-open final orders duly entered ...". The Chief Justice further observed: [7] Even if there were power to re-open the orders then it is clear that such a power should only be exercised in exceptional circumstances. The public interest in finality requires as much: see, albeit in a different context, Wentworth v Woollahra Municipal Council [1982] HCA 41 ; (1982) 149 CLR 672 at 684 (Mason ACJ, Wilson and Brennan JJ); Autodesk Inc v Dyason [No . 2] [1993] HCA 6 ; (1993) 176 CLR 300 at 302 (Mason CJ) and 317 (Dawson J). Considerable doubt has been thrown upon the observations in S353 by the decision of the Full Court in SZISM. In SZISM , the Court concluded that s 25(2B)(bc) was the power there available to be exercised and made the following observations as to the approach being advanced in S353 : [22] This conclusion about the content of s 25(2B)(bc) makes it unnecessary to deal with the arguments put forward on the appeal concerning the second asserted basis of power to set aside the orders implied or inherent power. This, of course, was the subject of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 in the context of a discussion of the powers of the Family Court of Australia. It is not appropriate for us to deal with these arguments and the issues raised by them, including the scope and effect of s 23 of the Act in the absence of the need to do so. We should note, however, that the reasons of the Judges of the Full Court in S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 were given in the context of a concession by the Minister that power existed to set aside the order, though entered. The comments of Emmett J at [20] with which Allsop J and Middleton J agreed referred to the inherent power of the Court to set aside an order made in the absence of a party or at a hearing of which the party had no notice. Reference was made by Emmett J only to Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 at 8. In the light of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 , such an unqualified proposition even supported by Taylor v Taylor [1979] HCA 38 ; 143 CLR 1 is difficult to maintain: see the comments of Black CJ in Pantzer v Wenkart [2007] FCAFC 27. The comments made by Emmett J, with which Allsop J and Middleton J agreed, were obiter dicta and made in the context of the concession to which we have referred. They should not be taken as authority for an unqualified proposition of the lack of relevance of DJL v Central Authority [2000] HCA 17 ; 201 CLR 226 to any examination of this Court's power. What authority this Court has by implication to take any particular step and the relevance of s 23 of the Act to any such question need not be considered for the disposition of this application. Although the Court may not have an " inherent power ", as a Court created by statute, it does have all the " powers expressly or by implication conferred by the legislation which govern[s] it " and has " in addition such powers as are incidental and necessary to the exercise of the jurisdiction conferred ": DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [25] , cited with approval in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [30] , [2005] FCAFC 91 ; 141 FCR 291 at 296. In VTAG , Heerey, Finkelstein and Lander JJ cited with approval the statement of Wilson and Dawson JJ in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 at 619, that the Court's " incidental and necessary powers " are " no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction ". From this, their Honours in VTAG held that the Court had power to set aside a consent order where the parties consent and had " in very limited circumstances " a power to set aside final orders made otherwise than by consent. See also: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [20] , 246 ALR 113 at 116. Section 25(2B)(bc), it was further held, did not " evince an intention that only orders under paras (ba) and (bb) can be varied or set aside ": [2005] FCAFC 91 at [32] , [2005] FCAFC 91 ; 141 FCR 291 at 295.


case_title: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 , 223 CLR 1


case_text: " very limited circumstances " envisaged by VTAG , it was contended on behalf of the Minister, were confined to those situations identified in Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235 at 243 to 244 as follows: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. See also: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037 at [8] ; Tresize v National Australia Bank Ltd [2005] FCA 1095 at [34] , 220 ALR 706 at 715. It is unnecessary to resolve the extent of any " inherent power " or any " incidental power ". The power referred to in S353 was a power which was said to be available to vary orders made in the absence of a party. Such was not the present case. The orders as made in July 2007 were made with the express consent of the now Applicant. The Minister does not consent to the July 2007 orders now being set aside and the facts do not come within the limited exception embraced by Harvey v Phillips . No injustice, it is considered, is occasioned by holding the Applicant to the decision he made in July 2007. A further potential difficulty is whether the application which is now made to the Court should have been made by way of a new application rather than by way of Motion in the same proceeding in which North J originally made the July 2007 Order. After having referred to the ground upon which a consent order could be set aside in Harvey v Phillips , Handley JA in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 observed that "... it is also established that the jurisdiction to set aside a consent order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings ..." The difficulty could, perhaps, have been overcome by simply treating the existing Notice of Motion as a fresh proceeding: cf Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [22] , 78 ALD 151 at 158. No objection, however, was taken on behalf of the Respondent Minister to the manner in which the Applicant has proceeded and accordingly this further difficulty need not be resolved. Even if the Court had power to revoke the Order as made in July 2007, any such relief would have been refused in the exercise of discretion assuming that the Court has such a discretion: cf Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235 at 242. The resolution of the present Notice of Motion is no occasion to conduct a de facto hearing of the Appeal which was dismissed by consent. It is sufficient for present purposes to note that the Refugee Review Tribunal set forth its reasons and findings in considerable detail. The learned Federal Magistrate also addressed each of the grounds advanced before that Court. The Notice of Appeal to this Court identified the Grounds of Appeal as follows (without alteration): His Honour Scarlett ignored the written case filed in Court on 7 March 2007 and failed to give me yet a detailed judgment. I rely on the order dated 22 March 2007 and yet will provide further grounds when I receive the judgment. His Honour Federal Magistrate Scarlett overlooked Consent Order appearing on page 114 of the court book dated 31 May 2006 and order by His Honour Smith FM appearing on page 115 of the court book filed 22 June 2006 and the comment made and filed on 26 September 2006 in court book p. 143-145 which would lead to see that the Tribunal made a judicial error under s.424 of the Act which provides an opportunity for the applicant for further comment and such did not happen. Neither of these grounds would appear to have any substance. The decision of the Federal Magistrate previously under appeal dealt with each of the grounds being advanced before that Court. The reasons for decision are expressed in sufficient detail to set forth the basis upon which each of the grounds was rejected. The reference in the second Ground of Appeal to a " Consent Order " was an order previously made by a Federal Magistrate quashing a previous decision of the Refugee Review Tribunal. Its relevance to the subsequent decision of a different Federal Magistrate is elusive. And the decision previously under appeal addressed and resolved the question as to whether an opportunity had been extended to the Applicant to present his case. The Notice of Appeal does not expose any self-evident error on the part of the Federal Magistrate. There was, moreover, no acceptable explanation as to why the Order as made in July 2007 was only sought to be impugned by a Notice of Motion filed in February 2009. The only explanation advanced was that there had been a change in government.


case_text: the Court may not have an " inherent power ", as a Court created by statute, it does have all the " powers expressly or by implication conferred by the legislation which govern[s] it " and has " in addition such powers as are incidental and necessary to the exercise of the jurisdiction conferred ": DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [25] , cited with approval in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [30] , [2005] FCAFC 91 ; 141 FCR 291 at 296. In VTAG , Heerey, Finkelstein and Lander JJ cited with approval the statement of Wilson and Dawson JJ in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 at 619, that the Court's " incidental and necessary powers " are " no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction ". From this, their Honours in VTAG held that the Court had power to set aside a consent order where the parties consent and had " in very limited circumstances " a power to set aside final orders made otherwise than by consent. See also: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [20] , 246 ALR 113 at 116. Section 25(2B)(bc), it was further held, did not " evince an intention that only orders under paras (ba) and (bb) can be varied or set aside ": [2005] FCAFC 91 at [32] , [2005] FCAFC 91 ; 141 FCR 291 at 295.


case_text: setting aside of consent orders, it was suggested, may attract different considerations than the setting aside of other orders. Their Honours thus observed: [26] There are characteristics of consent orders which strongly suggest that Parliament would not have intended that such an order, once made and entered, could never be set aside or varied. With a consent order, leaving aside the exceptional case of approval of compromises involving litigants under a disability, the Court does not inquire into the merits of the order proposed. It does not decide questions of fact or law. With a consent order there is not the possibility of error of fact or law which could found an appeal either from a single judge to the Full Court or from the Full Court to the High Court. Reference was there also made by their Honours to Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 where Brennan J, sitting as a judge of the Australian Capital Territory Supreme Court, also recognised exceptions to the general rule that a perfected judgment cannot be recalled or varied. The Court, it was said, had an " inherent jurisdiction to ensure that its procedures do not affect (sic) injustice ". See also: Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at [150] to [151].


case_text: can the present Applicant bring himself within Order 52 r 38A of the Federal Court Rules . In NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 718 , Allsop J had previously had to consider both Order 35 r 7 and Order 52 r 38A. Orders had there been made by a Full Court comprised of three Judges of this Court. Allsop J, sitting as a single Judge, referred the application to the Full Court and in doing so observed: [11] At the directions hearing before me, Mr Markus, who appeared for the respondent, submitted that I had no power to make any orders. He said that to the extent that the Court was proceeding under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) (that is making an order for dismissal of the proceedings for failure of the appellant to attend a hearing relating to the appeal), there was no power to set aside the orders after entry. He pointed (correctly) to the prefatory words in O 35 rule 7(2) of the Federal Court Rules: where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act. ... [12] It may be an open question as to whether the power in O 52 ... r 38A(2)(a) of the Federal Court Rules can be used after entry of the orders. In any event it is by no means clear that a single judge can be "the Court" there referred to. Indeed, I do not think it is. ... [17] Given that I think that there is force in Mr Markus' arguments as to the lack of power in a single judge to use Order 35 r 7(2) to set aside an order of a Full Court, the appropriate course is to refer the application to a Full Court. ... Order 52 r 38A relevantly provides as follows: Absence of party (1) If a party is absent when an appeal is called on for hearing, the Court may: ... (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If the Court proceeds with the hearing under paragraph (1)(d), the Court may: (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal. When the case came before the Full Court, Branson, Bennett and Graham JJ proceeded under this provision of the Rules : NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 241 at [33] to [34]. It was not necessary for their Honours to resolve the question left open by Allsop J as to whether Order 52 rule 38A could be invoked after orders had been entered.


case_title: NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 241


case_title: Pantzer v Wenkart [2007] FCAFC 27

case_text: order, once made and entered, is normally final. In DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 , the High Court held that the Full Court of the Family Court did not have power to re-open final orders after their entry. And, in reliance upon that decision, in Pantzer v Wenkart [2007] FCAFC 27 at [5] , Black CJ observed that it was " hard to see ... how, in the face of DJL v The Central Authority , there can be any foundation for the contention that the Full Court of the Federal Court has power to re-open final orders duly entered ...". The Chief Justice further observed: [7] Even if there were power to re-open the orders then it is clear that such a power should only be exercised in exceptional circumstances. The public interest in finality requires as much: see, albeit in a different context, Wentworth v Woollahra Municipal Council [1982] HCA 41 ; (1982) 149 CLR 672 at 684 (Mason ACJ, Wilson and Brennan JJ); Autodesk Inc v Dyason [No . 2] [1993] HCA 6 ; (1993) 176 CLR 300 at 302 (Mason CJ) and 317 (Dawson J). Considerable doubt has been thrown upon the observations in S353 by the decision of the Full Court in SZISM. In SZISM , the Court concluded that s 25(2B)(bc) was the power there available to be exercised and made the following observations as to the approach being advanced in S353 : [22] This conclusion about the content of s 25(2B)(bc) makes it unnecessary to deal with the arguments put forward on the appeal concerning the second asserted basis of power to set aside the orders implied or inherent power. This, of course, was the subject of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 in the context of a discussion of the powers of the Family Court of Australia. It is not appropriate for us to deal with these arguments and the issues raised by them, including the scope and effect of s 23 of the Act in the absence of the need to do so. We should note, however, that the reasons of the Judges of the Full Court in S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 were given in the context of a concession by the Minister that power existed to set aside the order, though entered. The comments of Emmett J at [20] with which Allsop J and Middleton J agreed referred to the inherent power of the Court to set aside an order made in the absence of a party or at a hearing of which the party had no notice. Reference was made by Emmett J only to Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 at 8. In the light of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 , such an unqualified proposition even supported by Taylor v Taylor [1979] HCA 38 ; 143 CLR 1 is difficult to maintain: see the comments of Black CJ in Pantzer v Wenkart [2007] FCAFC 27. The comments made by Emmett J, with which Allsop J and Middleton J agreed, were obiter dicta and made in the context of the concession to which we have referred. They should not be taken as authority for an unqualified proposition of the lack of relevance of DJL v Central Authority [2000] HCA 17 ; 201 CLR 226 to any examination of this Court's power. What authority this Court has by implication to take any particular step and the relevance of s 23 of the Act to any such question need not be considered for the disposition of this application.


case_title: Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 , 78 ALD 151

case_text: further potential difficulty is whether the application which is now made to the Court should have been made by way of a new application rather than by way of Motion in the same proceeding in which North J originally made the July 2007 Order. After having referred to the ground upon which a consent order could be set aside in Harvey v Phillips , Handley JA in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 observed that "... it is also established that the jurisdiction to set aside a consent order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings ..." The difficulty could, perhaps, have been overcome by simply treating the existing Notice of Motion as a fresh proceeding: cf Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [22] , 78 ALD 151 at 158. No objection, however, was taken on behalf of the Respondent Minister to the manner in which the Applicant has proceeded and accordingly this further difficulty need not be resolved.


case_title: Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45


case_title: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 , 246 ALR 113


case_text: express power conferred by the Federal Court Rules which is frequently invoked is that found in Order 35 r 7(2). That Rule provides as follows: Setting aside (1) The Court may vary or set aside a judgment or order before it has been entered. (2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where: (a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents. (3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court. (4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order. But rule 7(2), it will be noted, does not apply where the Court is exercising its appellate jurisdiction: S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 at [19] . Order 35 r 7 is thus not an available source of power to vary or set aside the Orders made by North J. In S353 , for example, such an " inherent power " was referred to but not invoked. Emmett J, with whom Allsop and Middleton JJ agreed, there referred to Order 35 r 7 and set forth the circumstances in which this " inherent power " could be exercised as follows: [20] However, no provision of the Rules can deprive the Court of the inherent power that it has to set aside an order made in the absence of a party or an order made at a hearing of which the party had no notice (see Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 at 8). That is to say, it is an incident of the exercise of the judicial power of the Commonwealth that the Court may, in an appropriate case, set aside its own order if it is satisfied that there is a proper explanation for the non-attendance of a party at a hearing at which the order is made. However, given that the power exists, it is clearly discretionary (see Taylor at 8). In the absence of an adequate explanation for the non-attendance, the orders previously made were there not set aside. In Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 at [13] , Beaumont, Kiefel and Hely JJ also acknowledged a limited power in an " exceptional case " to revoke orders made by consent. Considerable doubt has been thrown upon the observations in S353 by the decision of the Full Court in SZISM. In SZISM , the Court concluded that s 25(2B)(bc) was the power there available to be exercised and made the following observations as to the approach being advanced in S353 : [22] This conclusion about the content of s 25(2B)(bc) makes it unnecessary to deal with the arguments put forward on the appeal concerning the second asserted basis of power to set aside the orders implied or inherent power. This, of course, was the subject of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 in the context of a discussion of the powers of the Family Court of Australia. It is not appropriate for us to deal with these arguments and the issues raised by them, including the scope and effect of s 23 of the Act in the absence of the need to do so. We should note, however, that the reasons of the Judges of the Full Court in S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 were given in the context of a concession by the Minister that power existed to set aside the order, though entered. The comments of Emmett J at [20] with which Allsop J and Middleton J agreed referred to the inherent power of the Court to set aside an order made in the absence of a party or at a hearing of which the party had no notice. Reference was made by Emmett J only to Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 at 8. In the light of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 , such an unqualified proposition even supported by Taylor v Taylor [1979] HCA 38 ; 143 CLR 1 is difficult to maintain: see the comments of Black CJ in Pantzer v Wenkart [2007] FCAFC 27. The comments made by Emmett J, with which Allsop J and Middleton J agreed, were obiter dicta and made in the context of the concession to which we have referred. They should not be taken as authority for an unqualified proposition of the lack of relevance of DJL v Central Authority [2000] HCA 17 ; 201 CLR 226 to any examination of this Court's power. What authority this Court has by implication to take any particular step and the relevance of s 23 of the Act to any such question need not be considered for the disposition of this application. It is unnecessary to resolve the extent of any " inherent power " or any " incidental power ". The power referred to in S353 was a power which was said to be available to vary orders made in the absence of a party. Such was not the present case. The orders as made in July 2007 were made with the express consent of the now Applicant. The Minister does not consent to the July 2007 orders now being set aside and the facts do not come within the limited exception embraced by Harvey v Phillips . No injustice, it is considered, is occasioned by holding the Applicant to the decision he made in July 2007.


case_text: S353 , for example, such an " inherent power " was referred to but not invoked. Emmett J, with whom Allsop and Middleton JJ agreed, there referred to Order 35 r 7 and set forth the circumstances in which this " inherent power " could be exercised as follows: [20] However, no provision of the Rules can deprive the Court of the inherent power that it has to set aside an order made in the absence of a party or an order made at a hearing of which the party had no notice (see Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 at 8). That is to say, it is an incident of the exercise of the judicial power of the Commonwealth that the Court may, in an appropriate case, set aside its own order if it is satisfied that there is a proper explanation for the non-attendance of a party at a hearing at which the order is made. However, given that the power exists, it is clearly discretionary (see Taylor at 8). In the absence of an adequate explanation for the non-attendance, the orders previously made were there not set aside. In Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 at [13] , Beaumont, Kiefel and Hely JJ also acknowledged a limited power in an " exceptional case " to revoke orders made by consent.


case_title: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691


case_title: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641


case_text: Federal Magistrates Court dismissed an application seeking review of the Tribunal's second decision: SZCZF v Minister for Immigration and Citizenship [2007] FMCA 506. An Appeal was lodged with this Court on 12 April 2007. The Applicant thereafter, apparently, sought Ministerial intervention. On 6 July 2007 he signed a " Consent Order " consenting to the dismissal of his Appeal to this Court. On 9 July 2007 a Judge of this Court, North J, dismissed the Appeal by consent. That Order has been entered.


case_title: SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 , 158 FCR 292

case_text: express exception set forth in the Act is s 25(2B)(bc) which permits the Court to " vary or set aside an order " made pursuant to s 25(2B)(bb), namely an order dismissing an appeal by reason of an appellant's failure to attend a hearing relating to the appeal. That power is a power conferred " in general terms " and " should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament ": SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [20] , 158 FCR 292 at 298 per Black CJ, Weinberg and Allsop JJ. As contemplated in SZISM, the power conferred by s 25(2B)(bc) is a power which can be exercised even after the orders have been entered. See also: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [1] ; Brannan v Minister for Immigration and Citizenship [2007] FCA 1900 at [3] ; SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462 at [2] . Considerable doubt has been thrown upon the observations in S353 by the decision of the Full Court in SZISM. In SZISM , the Court concluded that s 25(2B)(bc) was the power there available to be exercised and made the following observations as to the approach being advanced in S353 : [22] This conclusion about the content of s 25(2B)(bc) makes it unnecessary to deal with the arguments put forward on the appeal concerning the second asserted basis of power to set aside the orders implied or inherent power. This, of course, was the subject of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 in the context of a discussion of the powers of the Family Court of Australia. It is not appropriate for us to deal with these arguments and the issues raised by them, including the scope and effect of s 23 of the Act in the absence of the need to do so. We should note, however, that the reasons of the Judges of the Full Court in S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 were given in the context of a concession by the Minister that power existed to set aside the order, though entered. The comments of Emmett J at [20] with which Allsop J and Middleton J agreed referred to the inherent power of the Court to set aside an order made in the absence of a party or at a hearing of which the party had no notice. Reference was made by Emmett J only to Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 at 8. In the light of DJL v The Central Authority [2000] HCA 17 ; 201 CLR 226 , such an unqualified proposition even supported by Taylor v Taylor [1979] HCA 38 ; 143 CLR 1 is difficult to maintain: see the comments of Black CJ in Pantzer v Wenkart [2007] FCAFC 27. The comments made by Emmett J, with which Allsop J and Middleton J agreed, were obiter dicta and made in the context of the concession to which we have referred. They should not be taken as authority for an unqualified proposition of the lack of relevance of DJL v Central Authority [2000] HCA 17 ; 201 CLR 226 to any examination of this Court's power. What authority this Court has by implication to take any particular step and the relevance of s 23 of the Act to any such question need not be considered for the disposition of this application.


case_text: " very limited circumstances " envisaged by VTAG , it was contended on behalf of the Minister, were confined to those situations identified in Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235 at 243 to 244 as follows: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. See also: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037 at [8] ; Tresize v National Australia Bank Ltd [2005] FCA 1095 at [34] , 220 ALR 706 at 715.


case_title: SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462


case_title: Tresize v National Australia Bank Ltd [2005] FCA 1095 , 220 ALR 706


case_outcome: discussed

case_title: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 , 141 FCR 291

case_text: the Court may not have an " inherent power ", as a Court created by statute, it does have all the " powers expressly or by implication conferred by the legislation which govern[s] it " and has " in addition such powers as are incidental and necessary to the exercise of the jurisdiction conferred ": DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [25] , cited with approval in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [30] , [2005] FCAFC 91 ; 141 FCR 291 at 296. In VTAG , Heerey, Finkelstein and Lander JJ cited with approval the statement of Wilson and Dawson JJ in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 at 619, that the Court's " incidental and necessary powers " are " no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction ". From this, their Honours in VTAG held that the Court had power to set aside a consent order where the parties consent and had " in very limited circumstances " a power to set aside final orders made otherwise than by consent. See also: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [20] , 246 ALR 113 at 116. Section 25(2B)(bc), it was further held, did not " evince an intention that only orders under paras (ba) and (bb) can be varied or set aside ": [2005] FCAFC 91 at [32] , [2005] FCAFC 91 ; 141 FCR 291 at 295. In VTAG the Full Court concluded that there was power to set aside consent orders previously made and entered in circumstances where there was consent to the orders being set aside, there was no improper purpose and there were no rights of third parties affected. The " very limited circumstances " envisaged by VTAG , it was contended on behalf of the Minister, were confined to those situations identified in Harvey v Phillips [1956] HCA 27 ; (1956) 95 CLR 235 at 243 to 244 as follows: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. See also: SZJBW v Minister for Immigration and Citizenship [2008] FCA 1037 at [8] ; Tresize v National Australia Bank Ltd [2005] FCA 1095 at [34] , 220 ALR 706 at 715.


case_outcome: affirmed

case_text: The appellant is a citizen of India and a Christian. He applied for a protection visa alleging a well-founded fear of persecution on the ground that the Indian authorities would be unable to provide him with effective protection against Hindu extremists. His application was refused by a delegate of the Minister and on review by the Refugee Review Tribunal. An application for review to the Federal Magistrates Court was dismissed by Hartnett FM: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1334. 2 The appellant submits that the Magistrate erred in failing to find that the Tribunal committed jurisdictional error because: • there was no evidence to support a critical finding of fact by the Tribunal; and • having expressed doubt about some of its findings, the Tribunal did not proceed to consider the consequences if it were wrong. 3 The appellant also sought leave to raise grounds which were not argued before the Magistrate namely: • the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth); and • failed to deal with essential integers of the appellant's claims.


case_outcome: applied

case_text: To succeed on the "no evidence" ground the appellant would have to show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 356. Thus the question is not whether the court on judicial review would have reached the same finding on conflicting evidence. There was in the present case some evidence to support the finding, as properly understood. 18 The finding complained of must be identified accurately. In the present case the appellant's argument rests upon a misreading of the finding in question. India is a vast country. The Tribunal could not be reasonably taken as saying that it was satisfied that literally in every instance of attacks against religious minorities police across India have always taken action to respond. Viewed in context, the point the Tribunal is making is that while there is some protection generally in India against attacks against religious minorities, the position in Tamil Nadu, where the appellant comes from, is more favourable.


case_text: Further, to succeed on the "no evidence" ground, the fact of which there is said to be no evidence would need to be a jurisdictional fact, that is to say "an essential preliminary to the decision-making process" as distinct from "a fact to be adjudicated upon in the course of the inquiry": Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443, VXDC [2005] FCA 1388 ; (2005) 146 FCR 562 at [13] (hereafter, unless otherwise indicated, all citations are to be taken as including the responsible Minister as a party). The fact in question would fall within the second Willan category.


case_title: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [13]


case_title: Minister for Immigration and Multicultural and Indigenous v Rajalingam [1999] FCA 719 ; (1999) 93 FCR 220 at [67]

case_text: While the Tribunal referred several times to "doubt" as to the appellant's claims, those references were to doubt about the appellant's evidence, not about the Tribunal's satisfaction as to its own findings: Rajalingam ( 1999) [1999] FCA 719 ; 93 FCR 220 at [67] , cited by the Magistrate at [44].


case_title: Guo v Minister for Immigration and Multicultural and Indigenous Affairs [1997] HCA 22 ; (1997) 191 CLR 559 at 574

case_text: In any event, the Tribunal had an alternative basis for its ultimate non-satisfaction as to the protection visa criteria. The Tribunal did not rely only on its findings as to the appellant's lack of credibility on his account of alleged past events. The Tribunal said that, notwithstanding the rejection of most of his evidence about the adverse consequences of his involvement in Christian evangelism in the past, its focus must be on what would follow his return to India in the reasonably foreseeable future. This was correct. The fundamental task of the Tribunal was to form an opinion as to what was likely to happen to the appellant if he returned to India: Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 574. What had happened to him in the past in that country was a relevant, but not essential step: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [192] .


case_title: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [192]


case_title: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [19]

case_text: First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 45 In SZCJD [2006] FCA 609 I rejected a s 424A argument primarily because the protection visa application and its characterisation as vague and general were not the Tribunal's reason or part of its reason for its decision. I held (at [42]) that in any event s 424A(3)(b) applied as the applicant had given the information in the course of answering the question put by the Tribunal.


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

case_text: First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 35 In SZEEU [2006] FCAFC 2 a Full Court dealt with five cases raising s 424A points. In one of these cases, the appeal in SZBMI , the appellant had said in his protection visa application that he had fled from Bangladesh (referred to in the case as "the flight information"). This was drawn to the appellant's attention by the Tribunal but no particulars in writing were given. The Tribunal recorded that the appellant had confirmed at the hearing that he had read his protection visa application statement before signing it and that it was true and correct.


case_title: Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 919 ; (2001) 110 FCR 27

case_text: First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 25 However, subs (3) provides that the section does not apply to certain sorts of information, including information "(b) that the applicant gave for the purpose of the application". In Al Shamry the Full Court held that "the application" means the application for review by the Tribunal and does not include the information given by the applicant for the purposes of the initial visa application to the Department. In SAAP a majority of the High Court held that if s 424A(1) applies, the obligation is not satisfied by putting the information orally to the applicant in the course of the Tribunal hearing. 32 In NAZY [2005] FCA 744 the appellant had made a certain statement in answer to a question in his protection visa application form. The Tribunal in the course of the hearing referred to an inconsistency between the answer to that question and the appellant's oral evidence before the Tribunal as one of the reasons for rejecting his claim. The inconsistency was put orally to the appellant in the course of the hearing. Jacobson J held that s 424A(1) was not complied with. It was put to his Honour that Al Shamry was distinguishable because the appellant had referred to the protection visa application form when asked about it by the Tribunal and said that the information in it was true and correct. Counsel for the Minister relied on Gray J's decision in M55.


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

case_text: First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 and the High Court's decision in SAAP [2005] HCA 24 ; (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. 25 However, subs (3) provides that the section does not apply to certain sorts of information, including information "(b) that the applicant gave for the purpose of the application". In Al Shamry the Full Court held that "the application" means the application for review by the Tribunal and does not include the information given by the applicant for the purposes of the initial visa application to the Department. In SAAP a majority of the High Court held that if s 424A(1) applies, the obligation is not satisfied by putting the information orally to the applicant in the course of the Tribunal hearing. 30 I therefore accept that the Tribunal failed to comply with s 424A(1). The critical question then becomes whether the information in question fell within the exception created by s 424A(3)(b). If it did not, jurisdictional error will have been established: SAAP . It will be necessary to look at some of the recent authorities dealing with subs (3).


case_title: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [24] , [25]

case_text: In M55 [2005] FCA 131 Gray J had to deal, amongst other things, with an argument that the Tribunal had wrongly relied on the use by the applicant of his Sri Lankan passport on several occasions in leaving that country, the inference being that because the Sri Lankan authorities had not confiscated it they had no interest in him. His Honour held (at [24]) that the Magistrate was wrong in finding that the provision of the passport as part of the original application for a protection visa was sufficient to exclude the operation of s 424A(1). However, in his Honour's view that was not the end of the matter. He held (at [25]) that because, by means of the written submission of his counsel to the Tribunal, the appellant replied expressly on the terms of his protection visa application he thereby invited reference to the copy passport which was attached to his application form. There could be little doubt that the appellant intended that the Tribunal should look at this material. His Honour said: "In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act ." 32 In NAZY [2005] FCA 744 the appellant had made a certain statement in answer to a question in his protection visa application form. The Tribunal in the course of the hearing referred to an inconsistency between the answer to that question and the appellant's oral evidence before the Tribunal as one of the reasons for rejecting his claim. The inconsistency was put orally to the appellant in the course of the hearing. Jacobson J held that s 424A(1) was not complied with. It was put to his Honour that Al Shamry was distinguishable because the appellant had referred to the protection visa application form when asked about it by the Tribunal and said that the information in it was true and correct. Counsel for the Minister relied on Gray J's decision in M55. 34 It would seem that Jacobson J did not regard Gray J's decision in M55 as wrong. Rather, that case was to be distinguished on the basis that there the appellant had expressly adopted and put forward as part of his application to the Tribunal the earlier information whereas in NAZY the appellant had adopted the earlier information in answer to a question from the Tribunal. 39 M55 was not mentioned in SZEEU . Implicitly the members of the Full Court accepted that Jacobson J was correct in treating M55 rightly decided, but distinguishable. 40 In another of the cases dealt with in SZEEU , the case of SZDXA , the relevant information was that the appellant had entered Australia on a business visa. The Tribunal originally came to know this from another source but as Moore J said at [91]: "... it is tolerably clear from the Tribunal's reasons that it discussed this fact ... with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." 41 The distinction between this case and SZBMI (see [35]-[37] above) was not explained. 42 In dealing with the same case Weinberg J said at [179]: "... if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant. If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the Tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy: see generally SZEFM [2006] FCA 78 per Bennett J. This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception. If, however, the Tribunal proposes to use the earlier statement as the reason or part of the reason for affirming the decision under review rather than the later adoption, it must comply with s 424A(1)."


case_title: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39]

case_text: In NAZY [2005] FCA 744 the appellant had made a certain statement in answer to a question in his protection visa application form. The Tribunal in the course of the hearing referred to an inconsistency between the answer to that question and the appellant's oral evidence before the Tribunal as one of the reasons for rejecting his claim. The inconsistency was put orally to the appellant in the course of the hearing. Jacobson J held that s 424A(1) was not complied with. It was put to his Honour that Al Shamry was distinguishable because the appellant had referred to the protection visa application form when asked about it by the Tribunal and said that the information in it was true and correct. Counsel for the Minister relied on Gray J's decision in M55. 34 It would seem that Jacobson J did not regard Gray J's decision in M55 as wrong. Rather, that case was to be distinguished on the basis that there the appellant had expressly adopted and put forward as part of his application to the Tribunal the earlier information whereas in NAZY the appellant had adopted the earlier information in answer to a question from the Tribunal. 36 Moore J (at [20]) did not accept that "by adopting the statement at the hearing before the Tribunal the flight information was transformed into information provided by the appellant in his application review". His Honour went on to say: "If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. However, it cannot be said, in this case, that the Tribunal acted in such a way." His Honour said that NAZY was correct. His Honour did not further explain the distinction between mere adoption and the fact of the adoption. I am not sure that I understand it. 37 Weinberg J said (at [157]): "The adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review." 38 Allsop J (at [219]) agreed with Moore J that the flight information was "information" within the meaning of s 424A(1) but held, contrary to Moore and Weinberg JJ, that such information was part of the reason for affirming the decision. His Honour did not deal expressly with the subs (3) point.


case_title: SZCKD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [34] , [37]

case_text: In SZCKD [2006] FCA 451 the Tribunal relied in part on the absence of certain information from the applicant's protection visa application, which was referred to before the Tribunal. Graham J noted that the appellant's migration agent sent to the Tribunal a 31 page fax which included a statutory declaration made by him in the course of his application for a protection visa. His Honour said at [34] that the "inescapable conclusion" was that all of the information contained in the fax, which constituted the application for review as submitted to the Tribunal by the appellant's agent, constituted information that the appellant gave for the purpose of the application within the meaning of s 424A(3)(b). His Honour referred to the statements already mentioned from SZEEU and (at [37]) distinguished the case before him saying: "This case is quite different from one where in the course of a hearing before a Tribunal member an earlier statement was adopted. In this instance the information to which the Tribunal referred in its reasons was information derived from the documents which the appellant gave to the Tribunal for the purpose of the review application." (Emphasis in original) 44 In SZGGT [2006] FCA 435 , a decision handed down on the same day as SZCKD , the Tribunal had stated in its reasons that it had the Department's file before it and had considered its contents. In his letter in support of the application for review to the Tribunal the appellant, dealing with the reasons he had left China, said "As I explained before" and "I gave full explanations in my previous statement". Rares J rejected the Minister's argument that the incorporation by this reference was of everything which the appellant had put before the delegate, and not just so much of the material as related to the events surrounding his leaving China. His Honour said (at [36]) that when it is sought to say that a person "republished" something which had been provided at a different time, an objective assessment is called for. After reference to the concept of objective assessment in the law of defamation, contract, trade practices and passing off, his Honour concluded that a subjective criterion could not have been intended by Parliament in the case of s 424A. His Honour noted the earlier decision of SZDMJ [2005] FCA 1034 where Gyles J held that there was a "clear republication of original claims made in a declaration by the applicant as part of his application for review".


case_title: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [36]

case_text: In SZGGT [2006] FCA 435 , a decision handed down on the same day as SZCKD , the Tribunal had stated in its reasons that it had the Department's file before it and had considered its contents. In his letter in support of the application for review to the Tribunal the appellant, dealing with the reasons he had left China, said "As I explained before" and "I gave full explanations in my previous statement". Rares J rejected the Minister's argument that the incorporation by this reference was of everything which the appellant had put before the delegate, and not just so much of the material as related to the events surrounding his leaving China. His Honour said (at [36]) that when it is sought to say that a person "republished" something which had been provided at a different time, an objective assessment is called for. After reference to the concept of objective assessment in the law of defamation, contract, trade practices and passing off, his Honour concluded that a subjective criterion could not have been intended by Parliament in the case of s 424A. His Honour noted the earlier decision of SZDMJ [2005] FCA 1034 where Gyles J held that there was a "clear republication of original claims made in a declaration by the applicant as part of his application for review".


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


case_title: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42]


case_title: SZDPY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 627 at [35] , [36]

case_text: In SZDPY [2006] FCA 627 the Tribunal had relied on the appellant's educational history in India and in Australia as a basis for its finding as to the reasonableness of relocation within India. The appellant conceded that at the hearing before the Tribunal he had done more than simply adopt information concerning his education in Australia; in response to the Tribunal's questioning he had actively given details of his education in this country. However, he argued that answers regarding his education in India were in response to leading questions from the Tribunal where in effect he was asked to do no more than confirm the details in his original visa application. 47 Kenny J found that the appellant specifically provided the Tribunal with his Indian education details. Her Honour (at [35]) rejected the submission that the information did not fall within s 424A(3)(b) because it was given in response to questions in the nature of cross-examination. The Tribunal's questions "were specific and arose, naturally enough, from the appellant's visa application". Her Honour considered that SZEEU supported the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by s 424A(3)(b) , even if it came from another source. Her Honour found (at [36]) that the appellant did not "merely adopt" the education information in his visa application. At the Tribunal hearing he "separately and specifically" gave detailed information about his Indian education. 48 For no apparent reason, almost all the discussion of s 424A(3)(b) in the cases proceeds on the basis that the provision uses the word "provide". The subsection in fact uses the verb "to give", which simply conveys the notion of delivering or handing over (Shorter Oxford English Dictionary). If this matter were free from authority, there would be much to be said for the view that an applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered. Either way, the information is conveyed from applicant to Tribunal. If we were to read or hear "At the trial, A gave information about fact X to the court", we would take that as equally comprehending the possibility of A giving evidence about X in chief, or in cross-examination, or in answer to a question from the judge. 49 Likewise, if an applicant says to the Tribunal "What I said in my visa application is true" and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application. 51 In any event, in the present case, the information in question was positively advanced on behalf of the appellant in the letter of 9 December 2002. The reasoning in M55, SZCKD, SZCJD and SZDPY applies. 52 Counsel submitted that the Tribunal had to determine "substantive issues which arise on the evidence and material before it". He referred to a number of instances where the Tribunal had used expressions such as "The evidence ... has led me to be unable to accept that the essential and significant reason for the assault was his religious practice", "Aspects of the applicant's account have led me to doubt that he has provided accurate accounts of what occurred", and "I am unable to accept the accounts he has provided of what occurred in June and December 1999 are accurate" etc.


case_text: Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [16] , [17]

case_text: I would not grant leave to raise this argument. There is no explanation for it not being raised before the Magistrate. In any event, it has no reasonable prospects of success. The Act imposes no obligation to make positive findings in accepting or rejecting claims: VSAF [2005] FCAFC 73 at [16] - [17] . In a situation like the present one where the Tribunal expresses doubts about the appellant's account of specific events, it is unreal to expect the Tribunal to go on and make positive findings as to what in fact did happen. 54 The appeal will be dismissed with costs. I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 6 July 2006 Counsel for the Appellant: Mr A Krohn Solicitors for the Appellant: Erskine Rodan & Associates Counsel for the Respondent: Mr R Knowles Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 June 2006 Date of Judgment: 6 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/851.html


case_text: The appellant also relied upon the following passages in the Full Court decision in NABE v Minister for Immigration and Multicultural Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] : Where the tribunal fails to make a finding on "...a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction... And at [63]: A failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 16 I am prepared to accept that discrimination was raised by the appellant but only in a very general and background way, and not so much as a claim which was a "substantial, clearly articulated argument relying upon established facts". I do not characterise, unlike the federal magistrate, the matter of discrimination as a claim which necessarily required the detailed treatment as sought by the appellant. The main focus of the claim was the real chance of persecution and fear of physical harm. The general discrimination complained of by the appellant was to lead to such physical harm. This is the gist of the complaint made by the appellant in his statutory declaration on 1 June 2004 when he declared: On my return back to Bangladesh, I have real chance of being persecuted because of my community profile. My life will be under threat. There is no safety and security of life in Bangladesh for an activist like me. I shall be arrested and put into jail in relation to the false cases. I have no future in Bangladesh. I shall be discriminated in every walks of my life. My life will be in jeopardy. Under these circumstances I firmly believe that my case has merit to be considered. 17 The question of general discrimination before the Tribunal arose because the appellant confirmed that he believed Buddhists were subject to general discrimination amounting to persecution in Bangladesh. The Tribunal said: The Applicant confirmed that he believed that Buddhists were subject to general discrimination amounting to persecution in Bangladesh. The Tribunal confirmed that the Applicant was an ethnic Bengali, and alerted him to independent information from sources such as the United States, United Kingdom, Amnesty International and Human Rights Watch which described particular problems for Bangladeshi Buddhists from the Chittagong Hill Tracks ('tribals'). These sources referred to discrimination against minority groups generally, but did not refer to any persecution of Bengali Buddhists. The Applicant said his village in particular was not a good place for Buddhists. There were Muslims and Buddhists living there, but Buddhist religious programs had been threatened.


case_outcome: distinguished

case_text: This is not the situation that confronted Spender J in SZGOP v Minister for Immigration and Citizenship [2007] FCA 836 or Tamberlin J in Applicant NAKB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 534 , where their Honours were dealing with a clearly articulated claim, and where their Honours could not find that the issues sought to be agitated were either dealt with generally or specifically in any part of the Tribunal's findings.


case_title: SZGOP v Minister for Immigration and Citizenship [2007] FCA 836


case_text: The principles of law were not in contention between the parties. In both the appellant's and the first respondent's written submissions, reference was made to the decision of the Full Court in WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630, which provides that an inference may be drawn that the Tribunal did not consider a particular issue if it fails to deal directly with that issue in its reasons: at [47]. However, the Full Court also observed: But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 21 Even if one treated the question of general discrimination as being a substantial, clearly articulated argument, as the Full Court cautioned in WAEE 75 ALD at [47], an inference that the Tribunal did not consider such a particular claim is "not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point".


case_outcome: referred to

case_text: The analogy which Bowen CJ drew with a prosecutor's obligations was doubted by Selway J in Australian Competition and Consumer Commission v McMahon Service Pty Limited [2004] FCA 353 at [21] . Nevertheless, TNT has been followed by a Full Court in Arnotts Limited v Trade Practice Commission (No 1) (1989) 21 FCR 297 at 302.


case_text: In my view it is unnecessary to decide where the line ought to be drawn if something more than physical authorship is required, because whatever approach is taken within the authorities to which I have referred the transcript was not prepared by an officer of ASIC. This approach also seems to be in accordance with the approach taken by Wilcox J in Australian Competition & Consumer Commission v FFE (2003) ATPR 41-967 at [60] [61]. 24 Mr Stevenson SC, for ASIC, submitted that the words "prepared by" in section 12HB mean or include a document which the officer has caused to be prepared. I reject this approach to construction as inconsistent with the authorities to which I have referred. 25 I turn then to the question of whether the transcript "tends to establish" Citigroup's case. I have read the whole of the transcript in order to determine this question. In my opinion there is nothing in the document which can be said to support Citigroup's case, nor can it be said that there is anything in the statement that tends to impeach ASICs case. The most that can be said is that the transcript suggests lines of inquiry which may be of assistance to Citigroup in conducting its case. That does not answer the statutory test.


case_text: Selway J followed the decision of Mansfield J in Australian Competition & Consumer Commission v Rural Press Ltd [1999] FCA 1847 ; (1999) 96 FCR 141, where the question of whether a document has been prepared was determined by inquiring whether it had been physically prepared by an officer of the Commission. Selway J followed this approach as one which was not a plainly wrong interpretation notwithstanding the fact that this approach can on occasions produce unusual results; see at [17]. 21 The transcript of examination of Mr Chatfield was produced to me for inspection in accordance with section 12HB(4) of the ASIC Act. The transcript records that it was produced by "ComputerReporters". It was signed by Mr Chatfield as an accurate record of the examination. 22 In my view the transcript was not prepared by an officer of ASIC. First, it was not physically prepared by ASIC. Thus, in accordance with the approach taken by Mansfield J and Selway J, it was not prepared in the sense required by the statute. Second, it cannot be said to have been drawn up by the officer in accordance with the approach to construction taken by Bowen CJ in TNT .


case_text: The analogy which Bowen CJ drew with a prosecutor's obligations was doubted by Selway J in Australian Competition and Consumer Commission v McMahon Service Pty Limited [2004] FCA 353 at [21] . Nevertheless, TNT has been followed by a Full Court in Arnotts Limited v Trade Practice Commission (No 1) (1989) 21 FCR 297 at 302. 19 In McMahon an issue arose as to whether a witness statement, which was drafted by an officer of the ACCC, typed at the ACCC, and signed by the witness, was "prepared" by an officer of the Commission within the meaning of section 157 of the Trade Practices Act .


case_text: In Trade Practices Commission v TNT Management Pty Limited (1982) 39 ALR 665, Bowen CJ considered the construction and effect of section 157 of the Trade Practices Act 1974 which is relevantly in similar terms to section 12HB of the ASIC Act. 12 His Honour said at 670 that: "The intention disclosed by the wording of section 157... is that a corporation is to be given fair treatment, in the sense that it is to be given copies of documents which the Commission has and which would, speaking broadly, support the corporation's case." 13 His Honour compared these obligations with those placed upon a prosecutor. 14 The analogy which Bowen CJ drew with a prosecutor's obligations was doubted by Selway J in Australian Competition and Consumer Commission v McMahon Service Pty Limited [2004] FCA 353 at [21] . Nevertheless, TNT has been followed by a Full Court in Arnotts Limited v Trade Practice Commission (No 1) (1989) 21 FCR 297 at 302. 15 In TNT Bowen CJ said at 670 that the words "prepared by an officer of the Commission" refer to a document drawn up by the officer whether or not any particular contribution of ideas is evident in the contents of it. 16 His Honour said that "this appears to be the ordinary meaning of the word 'prepare' in relation to writings or documents. His Honour went on to say that: "if something more than physical authorship is required it is difficult to define where the line should be drawn". He observed that "[w]hatever test would have to be applied it would seem to lead to an awkward inquiry of the intellectual contribution of the officer". 17 His Honour then turned to the question of whether a document tends to establish the case. He said at 671 that in his opinion these words do not mean that the document must tend to place the case of the corporation beyond dispute. It is sufficient if the document supports the case of the corporation and so tends to establish the case. 18 However, a document which might suggest a line of inquiry which would be of assistance to a corporation in conducting its case did not, in his Honour's view, answer the necessary statutory description. His Honour said that he considered that: "section 157 should not be narrowly construed. If a document tends to impeach the plaintiff's case it tends to establish the defendant's case within the meaning of the section." 22 In my view the transcript was not prepared by an officer of ASIC. First, it was not physically prepared by ASIC. Thus, in accordance with the approach taken by Mansfield J and Selway J, it was not prepared in the sense required by the statute. Second, it cannot be said to have been drawn up by the officer in accordance with the approach to construction taken by Bowen CJ in TNT .


case_title: ACTEW Corporation v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1

case_text: some respects, the availability of review under s 39B(1A)(c) of the Judiciary Act is wider, and in some respects narrower, than that available under the AD(JR) Act. What is important for present purposes is that the notion of a "matter ... arising under any laws made by the Parliament" in s 39B(1)(c) of the Judiciary Act is wider than that of a "decision ... made under an enactment" of s 5 of the AD(JR) Act. Reference may be made to such cases as LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 , Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864 ; (2000) 101 FCR 1 , and ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1 , for an indication of the breadth of the concept of a matter arising under any laws made by the Parliament.


case_text: while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.