case_text: In SCAR the Full Court recognised that under certain circumstances the invitation process prescribed by s 425 of the Act may not have been fulfilled (see also SZFML ). However, in SCAR the Full Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill. In Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322, the Tribunal provided a translator who was unable to speak the appellant's language. In VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 ; (2002) 121 FCR 100, the appellant was misled by statements of the Tribunal. In Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 359, the Tribunal declined to grant an adjournment of the hearing, knowing that the appellant was incapacitated. Although the requirement of s 425 had been followed, the invitation was held to be 'an empty gesture and a denial of procedural fairness'(see Hely J at 366 [36]).


case_outcome: followed

case_text: leading authority on the power given by the Federal Court Rules to order service outside Australia is the judgment of the Full Court in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 (2003) 130 FCR 317. Some caution must be exercised with respect to some aspects of what the Full Court said about the provisions of O 8 of the Federal Court Rules in that case, because O 8 has been amended significantly since Bray was decided. At the time when Bray was decided, the provision equivalent to that now found in O 8 r 2 was in O 8 r 1 and was in terms different from the current provision. At that time, O 8 r 1 provided that "originating process may be served outside the Commonwealth in the following cases". There followed a series of paragraphs, each commencing with the words "where the proceeding". In some instances, these words were followed by the words "is founded on", followed in turn by a reference to a particular cause of action or factual circumstance. In other paragraphs, other descriptions of the kind of proceeding contemplated were set out. The focus was thus on the nature of the proceeding. Order 8 r 1 now contains nothing more than definitions of four terms used elsewhere in O 8. The form of O 8 r 2, which appears from the extracts from the rule that I have set out in [5] above, has been changed, so that the reference is to "a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned in the following table". The focus is no longer on whether a proceeding is of a kind mentioned in the list, but whether the proceeding consists of or includes a proceeding of any of the relevant kinds. The provisions that were in O 8 r 2 at the time of Bray are now found in O 8 r 3. There have been some changes. The requirement, formerly appearing in O 8 r 2(2)(b), that "rule 1 applies to the proceeding", is now in O 8 r 3(2)(b) as "the proceeding is of a kind mentioned in rule 2". The relevant criterion has broadened, to apply to a proceeding that is not only of a kind mentioned in the relevant list, but one which "consists of, or includes" any one or more of the kinds of proceeding in the relevant list. It follows that, for the purposes of the application of the present O 8 r 3(2), the proceeding may also include proceedings of kinds not mentioned in r 2, so long as it also includes one or more proceedings that are of such a kind. Significantly, O 8 r 3(2)(c) is in terms identical to the former O 8 r 2(2)(c), the meaning of which was considered by the Full Court in Bray . The Court was divided on the issue whether this requirement should be construed as a requirement that the applicant have a prima facie case in respect of every cause of action in the proceeding, or only a prima facie case in respect of the relief sought in the application, even if that relief were sought by reference to alternative causes of action which did not bring the proceeding within one of the kinds referred to in the then O 8 r 1. The majority, Carr J at [36]-[55] and Branson J at [171]-[193], held that it was sufficient that there was a prima facie case for the relief sought on the basis of any of the causes of action relied upon. Finkelstein J dissented. In construing O 8 r 3(2)(c), I am bound to follow the view of the majority in Bray . It is also necessary to point out that the power given by O 8 r 3(2) is clearly a discretionary power. Even if the Court achieves a state of satisfaction as to all of the elements in the paragraphs of subr (2), it is not bound to give the leave sought. Some respect must be paid to the principle of comity between the courts of different countries. Litigation between parties in different countries will be expensive and inconvenient for one of those parties in whichever of the countries it takes place. It is undesirable for a court to seize jurisdiction too readily, simply because a small aspect or small aspects of a proceeding fall within the kinds of cases contemplated in which service outside the jurisdiction of that court may be ordered, while the major elements of the proceeding do not. I do not take the amended form of the words in O 8 r 2 to amount to a requirement that, in every case in which it is possible to find the slightest element of a kind of case found in the table in that rule, it should follow that the power to order service outside Australia should be exercised. The tail should not always be allowed to wag the dog. The jurisdiction of the Court and the nature of the proceeding There can be no doubt that the proceeding instituted by the applicant falls within the jurisdiction of the Court. By s 86(1) of the Trade Practices Act , jurisdiction is conferred on the Court in any matter arising under the Trade Practices Act in respect of which a civil proceeding has been instituted under Pt VI. Part VI of the Trade Practices Act includes s 82. By s 82(1) a person who suffers loss or damage by conduct of another person in contravention of a provision (among others) of Pt V may recover the amount of the loss or damage by action against that other person. In the present proceeding, there is a claim for damages pursuant to s 82 , based on an alleged contravention of s 52 of the Trade Practices Act , which prohibits a corporation, in trade or commerce, engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 52 is found in Pt V of the Trade Practices Act . The relief sought in the proceeding is set out in six numbered paragraphs of the amended application. Two of those numbered paragraphs are each divided into two subparagraphs and another is divided into six subparagraphs. Each paragraph, and each subparagraph, involves a separate claim for specified relief. Some of the claims are cumulative, some stand alone, and others are alternative. Each claim for relief makes specific reference to one or more paragraphs of the amended statement of claim. To determine whether there is a prima facie case for the relief sought, it is necessary to examine separately each claim for relief by reference to the relevant paragraph or paragraphs of the amended statement of claim, and by reference to the affidavit evidence filed in support of the application. To the extent to which there are alternative claims for the same relief, it will be sufficient if there is a prima facie case for that relief on either of the bases claimed, in accordance with the principle from Bray to which I have referred in [9] above. Misleading and deceptive conduct Paragraph 1 of the relief claimed in the amended application is a claim under s 82 of the Trade Practices Act for loss or damage suffered as a result of the respondent's alleged contraventions of s 52. The claim is specifically based on paras 58 to 60 of the amended statement of claim. In fact, it is necessary to look at other paragraphs of the amended statement of claim to understand paras 58 to 60. Paragraph 54A alleges that from around 6 February 2002 until 23 May 2007, the respondent represented to the applicant that his assignment to Australia was long-term and secure. The particulars of these representations are as follows: The representations included the following: (i) a representation from Powell on either 6 or 7 February 2002 to the effect that the Applicant could stay as the Australian based CEO of Australian business as long as AWG did business in Australia; (ii) support from the Respondent in applying for permanent residency during 2002 and 2003; (iii) a representation from Powell between 5 December 2002 and February 2003 to the effect that the Applicant's assignment was permanent; (iv) a representation by Cole and Powell on 23 September 2003 to the effect that the Applicant could stay as the Australian based CEO of the Australian business as long as AWG did business in Australia. The representations were on-going until 23 May 2007 as the Applicant continued to serve as the CEO of the Australian business up until being told of the termination of the assignment on 23 May 2007, without the Respondent ever withdrawing or resiling from the representations. Paragraph 55 alleges that the representations were made in trade and commerce. In para 56, the applicant alleges that he acted in reliance upon the representations. This allegation is particularised as follows: The reliance included: (i) the Applicant's devotion as the full-time Australian based CEO of the Australian business without seeking any other alternative employment elsewhere; (ii) purchasing a house in Noosa, Australia on 24 February 2003; (iii) arranging for the Applicant's eldest daughter to move permanently to Australia in October 2004; (iv) applying for Australian citizenship in March 2004; (v) selling the Applicant's UK house on 2 December 2005; (vi) assisting the Applicant's wife to purchase a Security Monitoring business in Australia in early 2007.


case_text: the reasons given in [12]-[19], the claims made pursuant to the Workplace Relations Act are within the jurisdiction of the Court and make the proceeding one of a kind mentioned in O 8 r 2 of the Federal Court Rules . As I have said in [11], the claim made pursuant to s 52 of the Trade Practices Act is also within the jurisdiction of the Court. That claim also contributes to the proceeding being of a kind mentioned in O 8 r 2. The claims in contract are within the jurisdiction conferred on the Court by s 32(1) of the Federal Court Act in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. Alternatively, because all of the claims made in the proceeding arise out of the employment of the applicant by the respondent, there is a sufficient substratum of facts common to all the claims to bring the claims in contract within the accrued jurisdiction of the Court. See Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 607 per Mason, Murphy, Brennan and Deane JJ. The requirements of O 8 r 3(2)(a) and (b) of the Federal Court Rules are therefore satisfied. A prima facie case for the relief sought


case_text: the purpose of determining whether the requirement in O 8 r 3(2)(c) has been satisfied, a prima facie case exists if, on the material before the Court, including any inferences that might be drawn from that material, findings of fact would be made that would be sufficient to make out all of the elements of the claim concerned if those findings of fact were made at the end of the trial. See State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager appointed) (1991) 30 FCR 102 at 110.


case_outcome: cited

case_text: on the statutory entitlements to annual leave, I am of the view that a prima facie case is made out for the claims in paras 2 and 3 of the amended application. If it were necessary to be so, I would not be so satisfied with respect to the claims based on express or implied terms of the contract. In the case of express terms, there is no evidence of outstanding annual leave at 1 October 2007. The difficulty of converting express statutory entitlements into implied terms of contracts of employment was the subject of considerable discussion in Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 , especially at 418-423 per Brennan CJ, Dawson and Toohey JJ and 440-453 per McHugh and Gummow JJ. It is unlikely that the statutory entitlements became terms of the contract of employment in the present case. This issue need not be pursued any further, however, because a prima facie case with respect to the relief claimed in paras 2 and 3 of the amended application exists on the basis that the applicant has enforceable statutory entitlements. Breach of contract The remainder of the relief sought in the amended application, in the six subparagraphs of para 4, the two subparagraphs of para 5, and para 6, concerns claims arising out of the contract between the applicant and the respondent. In para 4(a) of the amended application, a claim is made for damages for breach of contract, pursuant to para 38 of the amended statement of claim. Paragraph 38 contains an allegation that the applicant has suffered loss and damage, pursuant to a breach of contract referred to in para 37 of the amended statement of claim. The breach referred to in para 37 was termination of the contract of employment (alleged in para 36 to have occurred on or around 1 October 2007), in breach of a term pleaded in para 32 of the amended statement of claim. In para 32, it is alleged that the applicant's assignment to Australia "was extended on a secure, long-term ongoing basis" from (at the latest) 23 September 2003. The particulars to para 32 state that the assignment was extended in accordance with para 54A of the amended statement of claim. As I have said in [26] above, para 54A alleges that the respondent represented to the applicant, between 6 February 2002 and 23 May 2007, that his assignment to Australia was long-term and secure. I have already set out the particulars to para 54A in [26] above. Those particulars merely contain allegations of representations alleged to have been made to the applicant. Any notion that there was a variation of the contract, so as to incorporate a term to the effect that the assignment to Australia was extended on a secure long-term basis comes from para 33 or para 34 of the amended statement of claim. The former of these alleges that the Australian assignment contract was varied and that the terms of the variation became terms of that contract. The latter alleges that the Australian assignment contract as varied replaced the original contract.


case_outcome: applied

case_text: way in which this ground was developed in the oral submissions of the Appellant did not amount to a challenge that the conduct of the Tribunal in the proceedings was such as not to have given him a hearing according to law. Neither, in the way in which the argument developed, was there a contention that the Tribunal's conduct in the course of the hearing, arising from the way in which questions were asked, gave rise to a reasonable apprehension of bias on the part of the Tribunal. An argument that the Tribunal Member had not asked 'proper questions' seems to have been developed also in the Federal Magistrates Court. Insofar as, in that court, the argument had the flavour of inviting the Tribunal to make its own inquiries and a supposed error on the part of the Tribunal in not so doing, the learned Federal Magistrate correctly apprehended, having regard to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 78 ALJR 992 , that the Tribunal is under no obligation to make its own inquiries. The Appellant made reference to a question which the Tribunal had asked him in relation to his travel to Japan. It seems though that his complaint is not so much with the question as with the use the Tribunal came to make of the answer that he provided and, for that matter, of the fact of his travel and being able to travel. As developed in oral submissions, there is no substance in ground 1 of the appeal grounds. Insofar as there is complaint about the use made by the Tribunal of the Appellant's answers, that use and whether or not the Magistrate erred in failing to find any error is best considered in the context of ground 3. Ground 2, alleged denial of procedural fairness


case_text: nature of the obligation cast on the tribunal by s 424A was definitively considered in the joint judgment of Gleeson CJ and Gummow, Callinan, Hayden and Crennan JJ in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , especially at paras 15, 17 and 18. Since then s 424A(3) has been amended so as to insert paragraph (ba) into that subsection. It is in that amended form that s 424A had application to the proceedings before the Tribunal. Having regard to the exceptions for which s 424A(3) provides, it may very well be that the Tribunal, insofar as it was thought that s 424A provided an obligation for the dispatch of the letter of 15 October 2007, went further than strictly the statute required. That though is hardly a basis for criticism of the Tribunal. Further, insofar as the letter sought information from the Appellant, s 424(2) provided ample authority for the Tribunal so doing. Judging by the course of proceedings at the hearing the Tribunal conducted, insofar as the same is revealed in the Tribunal's reasons, it seems that the Tribunal gave to the Appellant a fair opportunity to comment, in the course of his appearance and evidence before the Tribunal, about the concern articulated in the letter of 15 October 2007. I am therefore satisfied that there is no substance in the procedural fairness challenge, as it has been termed. Ground 3, unreasonableness It is necessary to say something of the basis upon which the Appellant made his claim for a protection visa. His claim was based on the allegation that he was a Falun Gong practitioner and one of the leaders of the Falun Gong organisations in his home city. In amplification of that claim he stated that he had been detained by the police for almost six months, during which time, so he stated, he was tortured and forced to declare separation from the Falun Gong movement. His claim was that he feared that this particular detention and torture would happen again if he continued to participate in Falun Gong activities and demonstrations. He stated that he had, through the use of his friends in the government, applied for and obtained a passport and a visa. During the course of the hearing before the Tribunal, the Appellant also claimed that he had been part of the 1989 activities in Tiananmen Square and that he was a pro-democracy advocate.


case_text: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 , at page 274 and 275, in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, the following observations were made in relation to the Migration Act as it had come to be amended and in the form in which in substance it presently remains, so far as the granting of a protection visa is concerned: The grafting of what might be seen as the Chan test on to the new statutory power to make refugee status determinations reveals the true nature of the Minister's decision-making function in the present case. That is that if the Minister is satisfied that a person has a genuine fear, founded upon a real risk of persecution, then the Minister may determine in writing that the person is a refugee. A condition of determination is the Minister's satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee but rather it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. That is the 'decision' from which provision is made by the Act. As was observed in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. In that case, at 275 to 276, as in subsequent cases at ultimate appellate level, attention was drawn in relation to the reviewing of satisfaction-based decisions, to observations made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119. In the course of those observations Gibbs J had stated that the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. In Eshetu's case, at page 654 para 137, having referred to the observations of Gibbs J in Buck v Bavone , Gummow J added: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.


case_text: in time but to similar effect are observations made concerning s 36 and s 65 of the Migration Act by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1998-99) 197 CLR 611 at 647 paragraph 119, where his Honour observed, making reference to s 65A(ii) in so doing: The reference in subparagraph (a)(ii) to other criteria drew in for the present case section 36. It will be noted that section 65(1) imposed on the Minister an obligation to grant or to refuse to grant a visa, rather than a power to be exercised at discretion. The Minister's satisfaction was an anterior matter, being a component of the condition precedent to the discharge of the obligation to grant or refuse the visa. The Federal Magistrates Court was therefore conducting the judicial review of a decision based on a state of satisfaction. The Tribunal, standing as it did in the place of the Minister, was empowered, all other things being equal, to grant a protection visa if the Tribunal was satisfied that the Appellant was a non-citizen in Australia to whom the Tribunal was satisfied Australia had protection obligations under the Refugee Convention as amended by the Refugee Protocol, see s 36(2)(a) of the Migration Act . It is, therefore, by no means impossible to conceive of a basis upon which a satisfaction-based decision of the kind committed to the Tribunal was amenable to judicial review. Ground 3, as I understand it, seeks to engage just such a ground or more accurately to allege that the Federal Magistrates Court ought to have found such a ground to have been made out. As the statement made by Gummow J in Eshetu highlights, however, where the satisfaction-based question is one upon which reasonable minds might reasonably differ, it is very difficult indeed to challenge a satisfaction-based decision on an unreasonableness ground. Further, as has been often observed in relation to appeals of this kind, findings of credibility are par excellence findings of fact. They are findings uniquely within the province of the Tribunal to make. Of course, if there is some element of illogicality in the finding, then jurisdictional error might be shown. The difficulty is that in this case the findings which the Tribunal has made are findings which, however much and however genuinely the Appellant disagrees with them, are findings that it was reasonably open for the Tribunal to make. In those circumstances it is necessary for judicial officers conducting judicial review in the Federal Magistrates Court, or those in this Court hearing appeals, to remind themselves of the limits of the role consigned to the courts in judicial review.


case_text: was observed in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. In that case, at 275 to 276, as in subsequent cases at ultimate appellate level, attention was drawn in relation to the reviewing of satisfaction-based decisions, to observations made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119. In the course of those observations Gibbs J had stated that the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. In Eshetu's case, at page 654 para 137, having referred to the observations of Gibbs J in Buck v Bavone , Gummow J added: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.


case_text: limits were eloquently and definitely stated by Brennan J, as his Honour then was, in Attorney General (New South Wales) v Quin (1990) 170 CLR 1 at 35 to 36. In short, a principled restraint is called for, lest judicial review lose it legitimacy and descend impermissibly into a review on the merits. The Federal Magistrate, in my opinion, properly apprehended those limits in deciding that the conclusions of fact reached by the Tribunal were reasonably open, and having so done, in finding that a reasonableness based challenge was not made out. Ground 3 must therefore fail. In light of that, the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 November 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 12 November 2008 Date of Judgment: 12 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1734.html


case_text: In the present Application it is considered that leave to appeal should be refused. The decision of the Federal Magistrate was correct. There is no relevant distinction between either ss 351 or 417 and no distinction between the present case and the decision in Raikua v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 370 , 158 FCR 510. It is considered that the application has no prospects of success for the reasons given in SZJLM v Minister for Immigration & Citizenship [2008] FCA 300.


case_title: SZJLM v Minister for Immigration & Citizenship [2008] FCA 300


case_text: Leave to appeal is required because the decision of the Federal Magistrates Court is interlocutory: Federal Court of Australia Act 1976 (Cth), s 24(1A). An extension of time is also required. Although there is no rule providing for the time within which an appeal is to be brought in respect to an interlocutory decision of the Federal Magistrates Court, there is an implied time limit of 21 days: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [9] per Lindgren J. See also: Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220 at [32] per Moore J; SZLRL v Minister for Immigration & Citizenship [2008] FCA 716 at [6] . The Application as filed in this Court was outside the period of 21 days.


case_outcome: considered

case_text: Section 24(1A) of the 1976 Act confers on the Court " an unfettered discretion " in " unqualified terms ": Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399; [1991] FCA 655 ; 104 ALR 621 at 622 per Sheppard, Burchett and Heerey JJ. The requirement for leave to appeal is thus not a requirement that a particular test be satisfied: Lomas v Winton Shire Council [2002] FCAFC 413 at [15] per Cooper, Kiefel and Emmett JJ. Relevant to the exercise of the discretion, however, is a consideration of: (a) whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and (b) whether substantial injustice would result if leave were refused, supposing that decision were wrong. See: Harrington v Rich [2008] FCAFC 61 at [25] per Sackville, Emmett and Jacobson JJ; Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539 at 542 per Lockhart, Beaumont and Hill JJ. No question sought to be raised in the present appeal would raise any question of importance beyond the concerns of the parties to the present proceeding. Contrast: Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 at [10] .


case_text: The same conclusion may be expressed in respect to the second proposed Ground of Appeal . The reliance in that ground upon Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 , 197 ALR 389 and C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 , 94 FCR 366 is again equally misplaced. This proposed Ground also suffers from a further difficulty -- it purports to set forth as " Particulars " matters of evidence. It is thus stated that (without alteration): ... it is beyond any doubt that the authority knew about the applicant's complains. They knew that he was being targeted for money in his business. But it was submitted on behalf of the Respondent Minister that there was no such evidence before the Tribunal. The Tribunal's exposition in its reasons for decision of the " Claims and Evidence " does not refer to any such evidence. This would be a further reason for not granting leave to appeal -- at least in respect to this proposed Ground.


case_title: Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , 104 ALR 621


case_title: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 , 197 ALR 389


case_text: An order extending time is " not automatic " and a " discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties ": Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458 , 93 ALR 479 at 480 per McHugh J. It has further been said that "[s] ome good reason should ... be shown to dispense with the requirement to file an application for leave to appeal within 21 days ": Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] per Moore, Bennett and Buchanan JJ.


case_title: Harrington v Rich [2008] FCAFC 61


case_text: In the present proceeding no explanation was provided as to why there was non-compliance with the required 21 day period, other than the statement this morning by the First Applicant that he was not aware that there was any time limit. In such circumstances, no extension of time is warranted. The discretion to extend time within which to appeal from an interlocutory decision is that conferred by O 52, r 15(2) of the Federal Court Rules and not O 52, r 5(2). And that discretion, as r 15(2) expressly provides, may be exercised " for special reasons ". In Jess v Scott (1986) 12 FCR 187 at 195, 70 ALR 185 at 193, Lockhart, Sheppard and Burchett JJ helpfully observed in respect to this provision: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. ... It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. See also: SZLAF v Minister for Immigration & Citizenship [2008] FCA 219 at [11] .


case_title: Lomas v Winton Shire Council [2002] FCAFC 413


case_text: If the final proposed Ground is presently left to one side, other than the fourth proposed Ground, these were not arguments advanced before the Federal Magistrates Court. As was concluded in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. No explanation was forthcoming as to why those arguments were not advanced before the Federal Magistrates Court. 16 The course apparently now being pursued by the Applicants in seeking leave to appeal is the course of substantially abandoning the arguments that they unsuccessfully advanced before the Federal Magistrates Court and, without explanation, to now seek to advance completely new arguments on appeal. The discretion conferred by s 24(1A) to grant leave to appeal may be accepted as being conferred in " unqualified terms ". But however wide that discretion may be, it would be a surprising exercise of that discretion should leave be granted in such circumstances. 17 The arguments sought to be raised by the Draft Notice of Appeal are, in any event, each without substance. There is no reason why leave to appeal could not be confined to a particular proposed ground -- as opposed to leave being granted in respect to the Draft Notice of Appeal in its entirety. But none of the grounds in the Draft Notice of Appeal warrant leave being granted.


case_title: Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38


case_text: The final proposed Ground proceeds from a misconception as to the role of the Federal Magistrates Court. The task of that Court was to determine if the Tribunal had committed jurisdictional error ( Migration Act 1958 (Cth), s 474 ; Plaintiff S 157/2002 v Commonwealth [2003] HCA 2 , 211 CLR 476). Its task was not to " go into the merit of the case ". See: O'Donnell B, ' Jurisdictional Error, Invalidity and the Role of Injunction in s 75(v) of the Australian Constitution ' (2007) 28 Aust Bar Rev 291; Beaton-Wells C, ' Judicial Review of Migration Decisions: Life After S157' (2005) 33 FL Rev 141. 24 It is thus considered that an extension of time should be refused and the proceeding should be dismissed. The Applicants should pay the costs of the First Respondent. 25 The orders of the Court are: 1. The application to extend time within which to seek leave to appeal is refused. 2. The proceeding is dismissed. 3. The Applicants are to pay the costs of the First Respondent. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 15 July 2008 The First Applicant: The First Applicant appeared in person Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 15 July 2008 Date of Judgment: 15 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1052.html


case_title: SZDGN v Minister for Immigration & Multicultural & indigenous Affairs [2004] FCA 1543


case_title: SZLAF v Minister for Immigration & Citizenship [2008] FCA 219


case_title: SZLRL v Minister for Immigration & Citizenship [2008] FCA 716


case_text: This is an Application for Leave to Appeal from a decision of the Federal Magistrates Court: SZLSI v Minister for Immigration & Citizenship [2008] FMCA 418. 2 The Applicants, who are husband and wife, arrived from India in May 2007. They applied to the Department of Immigration and Citizenship for Protection (Class XA) Visas in June 2007 and those applications were refused in July 2007. The Refugee Review Tribunal affirmed the decision to refuse the visas by its decision in October 2007. 3 The First Applicant appeared before the Court this morning unrepresented, although he did have the benefit of an interpreter. He also appeared on behalf of his wife.


case_title: Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539


case_outcome: distinguished

case_text: The " Particulars " provided in relation to the first proposed Ground are but an impermissible invitation to revisit the merits of the decision as made by the Tribunal. Those " Particulars " thus state that "[t] he Tribunal failed to appreciate " the matters thereafter set forth. The reliance sought to be placed by the Applicants upon V v Minister for Immigration and Multicultural Affairs [1999] FCA 428 , 92 FCR 355 is misplaced. Views were there expressed as to what constituted " political opinion " for the purposes of art 1A(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. And the obligation of the Tribunal to make findings on material questions of fact imposed by s 430(1) of the 1958 Act was also recounted. But, in the present proceeding, there could not be said to be any non-compliance by the Tribunal with s 430(1). It made its findings on those matters material to its decision. 19 Parts of the first proposed Ground of Appeal are, in any event, in direct conflict with the manner in which the claim was advanced before the Refugee Review Tribunal and the evidence then given. The first proposed Ground thus states in part as follows: ... During the hearing the applicant stated that when his former business partner wanted to overtake his business from him as he was a Hindu, he complained to the police and the police did not protect him and asked for bribes. But, before the Tribunal, his evidence was that he did not complain to the police. The Tribunal thus recounted as follows the evidence then given: ... Asked why he didn't report the threats and beating to the police, the applicant claimed that the police wouldn't do anything unless they were bribed. The Tribunal put to the applicant that it was not possible to know for sure that the police would not act on his behalf without a bribe unless he actually reported the incidents to them. The applicant claimed that he had experience with the traffic police and knows that they ask for money for any reason and will beat you if you do not pay them. Not only is there a divergence between the manner in which the proceeding was conducted before the Federal Magistrates Court and this Court, there is also a divergence between the factual account now sought to be advanced for determination by this Court and the factual account advanced before the Tribunal. In the absence of an explanation, leave to appeal to raise such a ground should not be granted.


case_text: The question of whether or not leave to appeal should be given is, of course, governed by well established principles, namely that an applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and also must show that substantial injustice would result from a refusal of leave to appeal ( Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 231, [29] per McHugh, Kirby and Callinan JJ). 9 Before proceeding to consider the issue of whether the application was filed in time, it is also necessary to consider the other bases upon which, if an appeal were initiated, the applicant would seek to argue that the trial judge erred in failing to set aside the decision of the Tribunal. The draft notice of appeal submitted by the applicant with his affidavit on 7 February 2006 asserts that: (a) the Tribunal failed, in effect, properly to consider his case; and (b) the Tribunal refused to accept that the applicant had a well founded fear of persecution. 10 His Honour recorded in his judgment that the applicant was a citizen of China and he had arrived in Australia on 29 October 1997. The applicant had given evidence before the Tribunal on 25 February 1999 as to his assertions of persecution. In essence, the applicant claimed to have been a practicing Catholic for over twenty years and that he feared persecution were he to return to China. He claimed to have been part of an underground church in his town in 1987. He also claimed in his written application to the Tribunal to have studied the Bible. The Tribunal did not accept his claims for reasons which do not reveal any jurisdictional or other error. 11 The Tribunal, in its detailed reasons, set out an exchange with the applicant in which it questioned him about fundamental and well known aspects of Catholicism and the Christian faith. For example, the Tribunal recorded the following questions and answers in its reasons: 'Tribunal: In the Catholic faith what books in the Bible tell us about Jesus? Applicant: I can't remember Tribunal: What are the Ten Commandments? Applicant: I don't know. Tribunal: Can you name any of the Ten Commandments? Applicant: Can't remember, is it when you cannot eat meat?' 12 The Tribunal found that it was not satisfied with the applicant's credibility and that there were a number of inconsistencies in his evidence about various matters including his inability to answer basic questions about the Bible, the Catholic Church, Catholic teaching and Catholic practices. It gave the applicant until 8 March 1999 to address in writing those inconsistencies that had been referred to during the hearing. The Tribunal found that at the hearing the applicant was unable to give any explanation for a number of the inconsistencies and his explanations for the rest were not reasonable. It found 'in his written submission to the Tribunal the applicant has not addressed these inconsistencies.'


case_text: Ordinarily, if no additional evidence is admitted under section 27 of the Federal Court of Australia Act 1976 (Cth) or Federal Court Rules Order 52 r 36 an appeal and there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision maker. As Gleeson CJ, Gaudron and Hayne JJ noted in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203-204 [14] : 'That is because statutory provisions, conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error (see CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 201-202 [111] per McHugh, Gummow and Callinan JJ).'


case_text: Subsequently, in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 ; (2003) 134 FCR 308 at 319 [39] Gray J held that s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 provided that the calculation of any relevant period by reference to which a document may be presumed to have been served under either of those enactments was to be addressed by reference to the date of posting, and not the date borne by the document. Thus s 29 of the Acts Interpretation Act 1901 provides that there is a presumption, unless the contrary is proved, that a letter addressed to a person for which the postage was prepaid and which is posted, is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of the post. Moreover, s 29(2) preserves the operation of s 160 of the Evidence Act 1995 (Cth). The latter provision creates a presumption, unless evidence sufficient to raise a doubt about the presumption is adduced, that a postal article, sent by pre-paid post addressed to a person at a specified address in Australia, was received at that address on the fourth working day after it having been posted. 25 Gray J did not refer to, nor was I referred to, s 163 of the Evidence Act 1995 which makes special provision for the proof of letters sent by Commonwealth agencies. It provided as to a letter from a Commonwealth agency (until the definition of 'Commonwealth agency' was removed from the section and a substituted definition placed in the Dictionary of the Act by the Law and Justice Legislation Amendment Act 1999 (Cth) as from 13 October 1999 when it received the royal assent (see ss 2(1)) as follows: '(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared. (2) In this section: "business day" means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or bank holiday in the place in which the letter was prepared; "Commonwealth agency" means: (a) a Department within the meaning of the Public Service Act 1922; or (b) a House of the Parliament; or (c) a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or (d) a body or organisation, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (ii) by a Minister; "letter" means any form of written communication that is directed to a particular person or address, and includes: (a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989 ; and (b) any envelope, packet, parcel, container or wrapper containing such a communication; and (c) any unenclosed written communication that is directed to a particular person or address. Note 1: The NSW Act has no equivalent provision for section 163. Note 2: Section 5 extends the operation of this section to proceedings in all Australian courts.' 26 The Tribunal is a Commonwealth agency, being a body exercising power under a law of the Commonwealth, namely, the Act. The effect of s 163 is that the letter is presumed to have been received on the fifth business day after the date it bears (which, in practical terms, is likely to be seven days after the date). As Gray J pointed out (134 FCR 308 at 323-324 [54]) the letter of notification in that case did not comply with s 66(2)(d)(ii) of the Act because it failed to state accurately the time within which the application for review might be made. Accordingly, the Tribunal's obligation to notify the applicant, in that case, of the decision not to grant the substantive visa he sought, which was imposed by s 66, had never been discharged. 27 As s 66(2)(d) of the Act says, if an applicant has a right to have a decision reviewed under, relevantly, Pt 7, the letter or document of notification must: '... state: (ii) the time in which the application for review may be made' 28 By s 66(4) a failure to give notification of a decision does not affect the validity of the decision. 36 Although there may be some arguable issue, based on what Gray J said in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 ; (2003) 134 FCR 308, I am satisfied that no sufficient doubt has been raised to warrant a grant of leave from his Honour's finding set out at [5] above that the lengthy and poorly explained delay justified his Honour's exercise of discretion in refusing to grant prerogative relief. I am of opinion that there has been no substantial injustice shown.


case_text: The evidence before the Federal Magistrates Court was that on 11 March 1999 the Tribunal sent a letter to the applicant at his address notifying him of the Tribunal's decision to affirm the decision of the delegate which enclosed a copy of the Tribunal's decisions and reasons. The letter informed the applicant that he had 28 days within which to appeal to the Federal Court. It noted that if the letter were posted he would be taken to have received it seven days after the date of the letter. (Presumably this was in reliance upon reg 5.03 of the Migration Regulations which so provided. However, in Minister for Immigration v Singh [2000] FCA 377 ; (2000) 98 FCR 77 at 91 [51] O'Connor and Mansfield JJ held that regulation to be invalid to the extent it sought to impose such time constraints.) 23 Regulation 5.03 made provision for deeming a document to be served 7 days after its date. It also permitted the document to be sent on the seventh day so that, in fact, it could not have been received until after the seventh day. A Full Court of this Court held that Regulation 5.03 was ultra vires the regulation making power ( Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77).


case_text: Making all allowances that can be made for a person who has no legal training and does not speak English, the draft notice of appeal does not indicate any error of his Honour in refusing to grant the applicant the relief sought in the Federal Magistrates Court. Rather, the draft notice of appeal concentrates on what are said to be errors as to the merits of the applicant's claim for a protection visa which concentrate on findings of fact, including the findings as to the applicant's credibility. There is no jurisdictional error made by a decision maker in the position of the Tribunal simply because it found facts in a way which may be erroneous. Its jurisdiction was to find the facts and for that purpose it could do so rightly or wrongly: Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 390-394 per Dixon J, with whom Evatt and McTiernan JJ agreed; NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37] .


case_title: Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7 ; (1938) 59 CLR 369


case_text: In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 212 [211] (Kirby J agreeing at 203 [174] and see also McHugh J to the same effect at 185 [84] )Hayne J in considering whether prerogative relief could be refused by the Court in cases of jurisdictional error, said: 'There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way.' 35 Here, an unexplained delay of over six years between the handing down of the decision and the commencement of the proceedings seeking judicial review appears to me to dictate that the interests of justice would not be served by a grant of leave to appeal. The applicant did not put evidence before his Honour or this Court, to support the fact that he had not been notified of the decision of the Tribunal, contrary to the statement in his application to the Court below, until he learnt of it in 2005. That explanation, had it been made on oath could have been tested and his Honour could have made findings about it.


case_outcome: affirmed

case_text: This is an application for leave to appeal from a decision of the Federal Magistrates Court given on 1 February 2006 ( SZGMB v Minister for Immigration [2006] FMCA 175). 2 The applicant lodged an application for a protection visa on 13 November 1997. A delegate of the respondent refused to grant the protection visa on 30 April 1998. The applicant applied to the Refugee Review Tribunal ('the Tribunal') for a review of that decision on 10 May 1998. On 11 March 1999 the Tribunal affirmed the decision not to grant the applicant a protection visa. 4 Before the trial judge, ([2006] FMCA 175 at [19]) and also before me, the applicant asserted, without giving evidence, that he had never received any notification of the Tribunal's decision until after he had been detained in 2005 by officers of the respondent's department. 5 It does not appear that his Honour invited the applicant to give evidence to support his assertion of non receipt of the letter of 11 March 1999. Instead, his Honour proceeded to consider the matter but did not determine whether the applicant had been notified in accordance with the Migration Act 1958 (Cth) under regulations in force on 11 March 1999. Rather, his Honour said that even if the Tribunal had made a jurisdictional error 'the lengthy and poorly explained delay would be sufficient to persuade the court to exercise its discretion not to grant relief by way of a constitutional writ' ([2006] FMCA 175 at [24]). 6 If there were evidence that the applicant had not in fact received the letter of 11 March 1999, then he had a reasonable explanation for his delay. 7 When the matter came before me for hearing, I inquired of Ms Radich, who appeared for the respondent, as to what the relevant law was regarding notification by the Tribunal of its decision to an applicant for review on 11 March 1999. Ms Radich was not in a position at that time to assist with that material and asked for time to put in a written submission. I granted her leave to do so and gave directions for the applicant to provide written submissions in response. On 20 March 2006, written submissions were received from counsel for the respondent, Ms McNaughton. On 27 March 2006 I received written submissions from the applicant. 13 The Tribunal was not satisfied that the applicant had been involved in religious activities as he had claimed. It was also not satisfied as to the credibility of his claim to have been arrested because of activities involving his Catholic faith in which he claimed to have been involved. The Tribunal also made other credibility based findings concluding, as noted by the trial judge ([2006] FMCA 175 at [7]): 'At the Tribunal hearing, the overall implausibility and lack of credibility of the applicant's claims was pointed out to him. The applicant was given the opportunity to clarify the contradictions regarding the various claims that he has made, but was unable to do so in any meaningful way either at his hearing or in the subsequent written submission. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in China in the foreseeable future, and is therefore not satisfied that the applicant's fear of persecution for a convention reason is well founded.' 14 The applicant told his Honour and also me that he suffers from motion sickness induced by travelling. He claimed to have been affected by that in the hearing before me even though he had been present in court for about one and a half hours before his matter was called on for hearing. He said that the motion sickness affected his ability to think and to respond. He said that a similar affliction had occurred when he gave his evidence to the Tribunal, and that had affected the fairness of the process both before the Tribunal, the Federal Magistrates Court, and presumably before me. I put to the applicant that he would always be affected by this at any hearing to which he had been brought, such as to the Court, and he appeared to agree with that proposition. In his written submissions, the applicant said that this condition: '...is now much better than before. So that there is no problem of carsick[ness] for attending [the] Magistrate Court hearing this time.' 15 I observed the applicant to respond intelligently to questions which I put and I did not observe him to have any apparent difficulty in doing so during the hearing. He was able to read from and refer to notes which he had prepared in his own language. Moreover, for example, when I asked him about whether he had received notification from the Tribunal by reference to the letter of 11 March 1999 contained in what had been the Green Book before his Honour, he was able immediately to pull the Green Book out of his bag and look up the relevant document, without any apparent problem at all. 16 And, his Honour noted that the applicant had at no time informed the Tribunal member that he had had any difficulty relating to his car or motion sickness ([2006] FMCA 175 at [18]). In his written submission the applicant said that he had not understood the Tribunal's procedures and that the Tribunal had not mentioned that if he were very sick another hearing date could be arranged. This was, he submitted, why he did not tell the Tribunal that he was sick and, so he argued, this is why the Tribunal made an error. 17 On the applicant's argument, he did not tell the Tribunal of the sickness he claims to have been suffering. That being so, there is no basis for an argument that the Tribunal committed any jurisdictional error in failing to deal with the carsickness claim. I am satisfied that this ground does not raise any sufficient doubt as to the correctness of the decision of the trial judge on it. It was open to his Honour to reject it, inter alia , because there was no evidence to support it. 18 Moreover, the applicant's complaints as to his motion sickness and any effect that may have had upon him at the hearing before the Tribunal have not been verified. The assertions which the applicant made about this matter both before his Honour and myself, were made as a submission not on oath. They were unsupported by any medical evidence. There is no suggestion in the reasons of the Tribunal, the trial judge or in the observations which I made of the applicant in court, which would enable a conclusion to be drawn that reliance upon this ground in an appeal would enjoy any prospect of success. 19 The applicant also complained that the assistance provided to him from a legal practitioner, apparently appointed under the Refugee Tribunal Legal Advice Scheme, was inadequate. In the judgment below, his Honour makes reference to the fact that there had been some tardiness on the part of counsel who had been appointed to give advice the applicant ([2006] FMCA 175 at [13]-[15]). As his Honour there noted, he had been informed by the counsel that had he provided advice to the applicant which was required under the scheme and that he, counsel, would not be appearing at the hearing. 20 The applicant complained that the relevant counsel had not obtained the tapes of the hearing before the Tribunal or had not listened to the tapes and that his case had been decided by his Honour without the applicant having been able properly to prepare it. Again, those complaints appear to be ones which would have no prospects of success. First, they are, again, new assertions which are not the subject of evidence on oath. In his written submission the applicant acknowledged that he had received legal advice, albeit late. His Honour made the finding that he was satisfied that the applicant had received the advice to which he was entitled under the scheme ([2006] FMCA 175 at [15]). Secondly, when I pressed the applicant to identify what was wrong with his Honour's decision, he said he was not able to identify any legal error because, understandably, he was not a lawyer. He said that he wanted a lawyer who would not charge and who could help him. Again, none of these complaints by the applicant raise any matter which would enjoy any prospect of success were leave to appeal granted. 21 As at 11 March 1999, s 430 of the Migration Act 1958 (Cth) ('the Act') provided: ' Refugee Review Tribunal to record its decisions etc. and to notify parties (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. (2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made. (3) Where the Tribunal has prepared the written statement, the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.' Subsequently s 430 was amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth); Schedule 3, Items 8 and 9. Item 8 repealed the former s 430(2) and Item 9 inserted ss 430A-430D. All these amendments commenced on 1 June 1999. 22 In the Migration Regulations 1994 (consolidated as in force on 10 December 1998; n.b: regulations 4.38-4.41 or 5.03 were not relevantly amended until 1 July 1999) ('the Regulations'), reg 4.40(1) provided that a notice or statement to be given to an applicant in relation to a decision of the Tribunal was to be taken to be duly given if it was posted to his or her last address for service which he or she provided in connection with the application. Regulation 4.41 provided that if a document was to be given to or served on a person for the purposes of a review by the Tribunal and no other provision in regulations allowed for service, then the document could be given or served on the address for service provided by the applicant by posting it to him or her at his or her last known place of residence.


case_text: In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at pages 272-275, in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, one finds a definitive exposition of the nature of the decision for which the Migration Act then and presently provides in relation to the granting of a protection visa. In that joint judgment, at pages 274 and 275, the following passage appears: it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded on a real risk of persecution. This is the 'decision' for which provision is made by the Act. 11 As was stated in the joint judgment in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. Authorities at ultimate appellate level, and Wu Shan Liang at page 275 to 276 is an example, have emphasised remarks made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119, in respect of the bases upon which a satisfaction based decision is amenable to judicial review. One basis adverted to by Gibbs J is that: if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.


case_text: Later, in Minister for Immigration and Multicultural Affairs v Eshetu (1998/1999) [1999] HCA 21 ; 197 CLR 611 at 647, paragraph 119 Gummow J remarked of s 65(1) of the Migration Act that that section: imposed on the Minister an obligation to grant or to refuse to grant a visa, rather than a power to be exercised at discretion. The Minister's satisfaction was an anterior matter, being a component of the condition precedent to the discharge of the obligation to grant or refuse the visa. 10 The references in the passages which I have quoted to the Minister, apply equally to the Tribunal, which under the Migration Act sits in the place of the Minister when conducting its merits review function.


case_text: As was stated in the joint judgment in Wu Shan Liang at page 275, it is no longer the case that a decision as to satisfaction is unreviewable. Authorities at ultimate appellate level, and Wu Shan Liang at page 275 to 276 is an example, have emphasised remarks made by Gibbs J, as his Honour then was, in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at pages 118-119, in respect of the bases upon which a satisfaction based decision is amenable to judicial review. One basis adverted to by Gibbs J is that: if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. 12 Having referred to this particular passage from Buck v Bavone in Eshetu's case, Gummow J, at page 654 para 137, observed of it that it was: consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. 13 His Honour added: It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. 14 It is with these principles in mind that I approach consideration of ground 2 in the appeal. When one looks to the findings and reasons of the Tribunal, see pages 86 and 87 of the Appeal Book, one sees that the Tribunal came not to be satisfied that the Appellant was a person to whom Australia owed protection obligations under the Refugee Convention because of a view reached by the Tribunal as to the Appellant's credibility in relation to the claim which she made. The Tribunal referred to a lack of apparent knowledge of Falun Gong practice and belief on the part of the Appellant during her evidence at the hearing conducted by the Tribunal. 15 The Tribunal also referred to the Appellant's ability freely to travel to and from Singapore to the People's Republic of China on two and perhaps even three occasions. The Tribunal referred to this travel pattern as being inconsistent with a fear of persecution if the Appellant returned to China.


case_text: I respectfully agree with everything stated by the Federal Magistrate in the passage which I have quoted. It is very important in a case like this for Magistrates, and in turn Judges on appeal, firmly to bear in mind the limits of judicial review. A principled restraint is called for. That proposition was stated and has frequently been emphasised thereafter in Attorney General (New South Wales) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36, per Brennan J, as his Honour then was. A hearing before the Tribunal in respect of an application for a protection visa is not an examination in theology. Nonetheless, in this particular case and bearing in mind the limits of reasonableness as a ground of challenge, and also inferences reasonably open in relation to the Appellant's travel pattern, the conclusions reached by the Tribunal were open. I discern no error in law in the Federal Magistrates Court so concluding. 18 That being the case, the appeal must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 November 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Sparke Helmore Date of Hearing: 12 November 2008 Date of Judgment: 12 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1708.html


case_outcome: referred to

case_text: As earlier foreshadowed, UBI has pleaded further causes of action upon the footing of conduct on the part of TV Plus in trade and commerce in Australia in contravention of ss 52 and 53(a), (b) and (d) of the TP Act, said to be constituted by the making of false, misleading and untrue representations to members of the public, and/or persons interested in receiving ethnic television broadcasts, to the effect that: (i) TV Plus held the right to broadcast the BHT-1 channel in Australia; and (ii) The rebroadcasting of the BHT-1 channel by TV Plus and the efforts of TV Plus to obtain subscribers based on their purported right and capacity to broadcast the BHT-1 channel was duly authorised by JRTS. For the purposes of establishing moreover liability for misleading and deceptive conduct under s 52 of the TP Act, TV Plus emphasised that there must be a relevant misrepresentation in order to be actionable, the Court being referred by TV Plus in that regard to Campomar Sociedad Ltd v Nike International Ltd (2000) 46 IPR 481 at 508-509; however there had been no representation by TV Plus concerning UBI's own broadcasts, that is, those broadcasts in relation to which UBI might own the copyright, so the TV Plus submission continued, because TV Plus had made those broadcasts from Australia. Nothing in the advertising or promotional activity otherwise of TV Plus was said by it to have suggested any association with UBI , and therefore no issue with respect to ss 52 or 53 of the TP Act arose adversely to TV Plus , so TV Plus further asserted. Essentially or largely, the same circumstances pleaded by UBI for breach of copyright were relied upon to support those pleaded causes of action. Damages and injunctive relief were similarly or correspondingly sought by UBI , in line with the relief sought for breach of copyright. 52 As to the issue of contractual entitlement, TV Plus submitted that there could be no misrepresentation relevantly to be imputed to TV Plus , in view of the fact (being a fact in issue from UBI's perspective) that there was a subsisting agreement between TV Plus and JRTS reached earlier on 4 January 2005 and which, among other things, constituted TV Plus Operations in particular as an exclusive licensee of the BHT-1 Channel along with 'its programming contents together with all associated rights ...'. While the purported grant of broadcast rights in the nature of copyright to TV Plus may have been nugatory because broadcasts from Bosnia and Herzegovina are not protected in Australia under the Copyright (International Protection) Regulations 1969 , so that TV Plus submission continued, so much was said to indicate that there was in any event a pre-existing contractual relationship between JRTS and TV Plus . Moreover TV Plus asserted that although it was said by UBI to have been acknowledged by TV Plus that there had been an earlier rejection by JRTS of any subsisting contractual obligation on its part in favour of TV Plus , nevertheless that any such rejection had occurred otherwise than within the terms of the TV Plus/JRTS contractual arrangements, and had not been in fact accepted by TV Plus . In that context it was further said by TV Plus to be beside the point for UBI to assert that TV Plus had never made payments under those arrangements, since TV Plus had always acknowledged its contractual liability to make such payments, though it maintained that the time for making even the initial payment falling due to JRTS has not yet crystallised for payment in favour of JRTS . In that regard, TV Plus asserted that no payment was due and payable under that TV Plus/JRTS agreement during the first six months of its term, yet the purported termination by Mr Hadzijamakovic on behalf of JRTS took place before the end of that six months period. 53 The foregoing circumstances propounded by TV Plus were therefore said by TV Plus to provide a firm basis for its asserted continuing belief that TV Plus was entitled to take the broadcast signals from JRTS originating in Bosnia and Herzegovina, and to distribute the same in Australia, and that accordingly the representation said to arise from the conduct of TV Plus was not misleading. Hence TV Plus submitted therefore that there was no prima facie case or serious question arising at least as to the first misrepresentation pleaded by UBI against TV Plus. Once again there needs to be pointed out the difficulties as to giving expression to the TV Plus case in circumstances where it has (at least thus far) withheld from joining JRTS as a third party to the proceedings.


case_text: The occasioning of ongoing loss to TV Plus , if TV Plus was to be relevantly enjoined in this interlocutory proceeding at the instance of UBI , was asserted by TV Plus to be 'considerable and would potentially threaten its whole undertaking', for the following reasons set out in Mr Jeremic's affidavit evidence ( TV Plus used the anglicised description therein of PBS rather than JRTS in those submissions, but for consistency in these reasons I have at least for the most part maintained reference to JRTS ): (i) its primary subscription base involves the Balkan States and approximately 90% of its revenue is derived by reference thereto; (ii) the BHT-1 broadcasts are a significant part of the so-called 'Balkans package' offered by TV Plus and there are close linguistic similarities between broadcasts from each of Bosnia, Serbia and Macedonia, being a factor which has the consequence that the BHT-1 broadcasts are not just taken up by members of the Bosnian community in Australia; (iii) restraining TV Plus from broadcasting BHT-1 would place the TV Plus in breach of its contractual obligations to its subscribers, since it would no longer be able to offer BHT-1 as part of its Balkans package; Mr Jeremic estimated that there would be cancellations of approximately 1,500 subscribers (out of its approximate 3000 subscriber base) with a consequential loss of revenue to TV Plus of $100,000 per month; (iv) Mr Jeremic also estimated a further loss of 350 subscribers likely to be sustained by its so-called website streaming platform amounting to $22,750 per month, so much involving more than a 50% reduction in the TV Plus' income flow; (v) enjoining TV Plus to the extent proposed would lead to staff reductions and cancellations of service contracts, both in Australia and abroad, and would alone jeopardise the survival of TV Plus ; (vi) there have also been threats to the TV Plus service providers, such as to Globecast Australia ( ante ); though I should observe that the nature and extent of those threats were not indicated, nor evidence adduced from an officer of Globecast in that regard, despite the extent otherwise of evidence tendered by TV Plus already; (vii) the evidence was said to suggest that UBI does not have the financial resources to meet any undertakings as to damages necessary in order for UBI to obtain interlocutory relief, TV Plus referring thereby to UBI's paid up share capital apparently comprising merely one share of $1 par value, and to its membership being confined to one person (Ms Regina Boulos), yet UBI's assets were subject to a registered charge to secure up to $60 million over all of its undertaking and assets; moreover no balance sheets or profit and loss accounts of UBI had been produced or made available to TV Plus ; accordingly no injunction should be granted in any event until an undertaking could be given by a natural person individually, such as the sole director and member presently of UBI earlier recorded Ms Boulos; I was referred in that context to Select Personnel Pty Ltd v Morgan and Banks Pty Ltd (1988) 12 IPR 167, cited with approval by the Full Court of this Court in First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1269 ; (2000) 101 FCR 77 at [23] - [24] , and also to Permanent Promotions Pty Ltd v Independent Distillers (Aust) Pty Ltd (2004) 62 IPR 538 at [25-26]; (viii) the notice to produce which had been issued by TV Plus to UBI was said to have been in the following terms: (a) the minutes of board meetings of the applicant for 2005 and 2006; (b) the most current balance sheet and profit and loss statement of the applicant; and (c) all subscription agreements entered into by customers of the applicant for its Balkan Bouquet package between July 2006 and 6 December 2006, and no such material had been as yet produced to the Court.


case_title: First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1269 ; (2000) 101 FCR 77


case_title: Permanent Promotions Pty Ltd v Independent Distillers (Aust) Pty Ltd (2004) 62 IPR 538


case_text: The yet further matter advanced by TV Plus in the context of the copyright issues, in sequence of presentation, was that broadcast copyright is 'distinct' from copyright in other works in relation to what may constitute the taking of ' a substantial part ' of the copyright work within s 14(1) of the Copyright Act . I was referred in that regard to the decision of the High Court in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273, and in particular at 299-303. The particular copyright work there established by the High Court consisted essentially of identified televised programmes or certain segments of televised programmes, as established by a majority of the High Court, rather than merely single images. In the course of the reasons for judgment of the majority of the High Court, it was explained that television broadcast copyright concerns broadcasts ' made from a place in Australia ', and so made ' under the authority of a license...or class license ' issued under the Broadcasting Services Act 1992 (Cth), and thereby involved the notion that the maker of the broadcaster is taken to be ' the person who provided the broadcasting services by which the broadcast was delivered '. The statutory scope of ' provide ' or ' provision ' may therefore be seen to be comprehensive. TV Plus did not appear to explain at the present stage of the proceedings why the notion of ' substantial part' was not susceptible to satisfaction in the particular circumstances of the present proceedings. 50 TV Plus next advanced the submission that in order to establish infringement here on the part of any one or more of the TV Plus companies, it would be necessary in any event for UBI to establish interception and thereafter broadcast (or what may conceivably be termed as 're-broadcast') within Australia, and it would not be enough in that regard for UBI's copyright cause of action to demonstrate interception from a place outside of Australia. Given the complexity of the modern technology involved in television transmission of televised programs originating offshore, and the apparent need for TV Plus to comprehensively establish the circumstances as to interception etc, it would be inappropriate to resolve any such complex as well as apparently controversial issues at this interlocutory stage. In that regard I refer to what I have earlier merely outlined in [4] above of these reasons. Mr Jeremic testified broadly and in a sense imprecisely as to the signals being transmitted 'in part from within Bosnia and Herzegovina', and the signals thus supposedly standing outside any notion of an Australian broadcast. TV Plus also pointed to the need for UBI to demonstrate copying in a television context, explaining that '[s]imilarities alone, or even complete identity, between the parties' works or their subject matter, are not enough in the absence of copying, as copyright is not a monopoly right such as a patent'. It is enough from a practical perspective to merely record and not resolve any such issues at the present stage of the proceedings, particularly given that more evidentiary precision, and further expert evidence, would appear to be required.


case_text: As foreshadowed, TV Plus has to date withheld from joinder of JRTS , yet TV Plus seeks to obtain from UBI a not insignificant extent of security for costs, being interlocutory relief which at least seems to me to be inappropriate to award, at least at the present time and until such circumstances can be addressed in an appropriately established context. JRTS has made known to TV Plus explicitly for some time its stance as to cessation of any contractual entitlement of TV Plus to broadcast in Australia television signals sourced from JRTS . It would be seemingly inappropriate to the exercise of the Court's discretion in its favour in the somewhat unique context presently prevailing, if not also inequitable, on the present state of the evidence, for TV Plus to gain the benefit of security for its costs provided by its Australian competitor UBI , in circumstances where it has withheld, at least for the time being, from joining to the proceedings the very entity from whom it claims controversially to derive its source of broadcasting entitlement or authority. In that regard, the present state of the evidence is that JRTS has maintained the position (and has done so in the context of its comprehensive affidavit material) of denial of any present entitlement, contractual or otherwise, of TV Plus to broadcast the television signals of JRTS in Australia, and for TV Plus to seek to do so to the competitive detriment of UBI as JRTS's asserted exclusive appointee in Australia. The commercial reality of the stance adopted by TV Plus may be described as being at least equally aggressive to that of UBI : Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324. 65 Assuming that an early final hearing is reasonably achievable, the making of final procedural orders should obviously be addressed by the parties and the precise formulation of those orders should be resolved as early as feasible. Of course the presently prevailing circumstances may change in the context of further steps that may be taken by any of the parties in order to resolve this complex as well as volatile dispute, being steps which may conceivably justify a re-opening of interlocutory issues. For the time being however, the status quo is that TV Plus is continuing controversially to utilise the television signals of JRTS in circumstances where UBI alone, and hence to the exclusion of TV Plus , is said by JRTS to be authorised. In the meantime in the context of the presently somewhat deficiently structured proceedings not yet fully and formally pleaded, and from which there has been thus far absent the critical off-shore source (ie JRTS ) of the subject television signals, I am of the view that I should defer the consideration of the grant of any interlocutory relief at least until there has been further clarification of the critical issues inherent to the dispute, including issues as to joinder of all necessary parties. 66 I direct that UBI provide to the Court draft orders to give effect to these reasons within three clear hearing days. I further direct that TV Plus respond with any changes required within a further two clear hearing days. The proceedings should then be listed for mention, hopefully with a view to fixing the date for a final expedited hearing to take place, and as early as possible having regard to all the circumstances for the time being prevailing, and in any event in order to resolve any remaining disputes in relation to the context of interim orders required to be put in place. An indication should be provided as to the nature and scope of what evidence (if any) remains to be adduced by each party, and of any additional issues of law still intended to be pursued. The costs of the present interlocutory proceedings would normally be ordered in terms merely as to costs of the proceedings generally, but I will entertain nevertheless any contrary submissions from either party so long as the same are furnished in writing within the next seven days. Of course there must be liberty to either side of the record to apply on seven days' notice to the other, that time taking into account the overseas elements of the proceedings. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 16 February 2007 Counsel for the Applicant: Mr R K Weaver Solicitor for the Applicant: Watson Mangioni Lawyers Counsel for the Respondent: Mr M Holmes QC and Mr S Ricketson Solicitor for the Respondent: Middletons Lawyers Date of Hearing: 15 and 21 December 2006 Date of Judgment: 16 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/142.html


case_text: observations have been repeatedly approved and applied by subsequent decisions of this Court, e.g. SZMHL v Minister for Immigration and Citizenship [2009] FCA 581 at [18] per Perram J; SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 at [40] , 105 ALD 499 at 506 per Graham J; MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770 at [13] per Buchanan J; Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [39] per Middleton J; Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533 at [22] per Weinberg J.


case_text: a general proposition, an administrative decision-maker may fall into jurisdictional error where he fails to consider relevant material: Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51] , [2002] HCA 11 ; 209 CLR 597 at 614 to 615 per Gaudron and Gummow JJ (McHugh J agreeing at [63]).


case_title: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 , 194 ALR 244

case_text: failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.


case_title: Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700


case_title: Martinez v Minister for Immigration and Citizenship [2009] FCA 528 , 256 ALR 32


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

case_text: a general proposition, an administrative decision-maker may fall into jurisdictional error where he fails to consider relevant material: Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51] , [2002] HCA 11 ; 209 CLR 597 at 614 to 615 per Gaudron and Gummow JJ (McHugh J agreeing at [63]). A failure on the part of the Refugee Review Tribunal to consider " a substantial aspect or integer " of a claim being advanced may likewise amount to a constructive failure to exercise its jurisdiction: SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [68] to [69] per Jacobson J. In Bhardwaj , supra , Callinan J concluded: [163] ... If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court. Similarly, in HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] , [2001] FCA 1802 ; 194 ALR 244 at 259 Allsop J (with whom Spender J agreed) observed: [42] ... This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. ... See also: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 at [28] , 107 ALD 33 at 40 per Gray J. So, too, is a decision of the Administrative Appeals Tribunal vitiated by jurisdictional error if it fails to have regard to " important material ": Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [37] to [52], 256 ALR 32 at 44 to 47 per Rares J.


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323

case_text: distinction is well-recognised: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 , 75 ALD 630. French, Sackville and Hely JJ there observed: [45] In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is: '... a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' (s 36(2)(a) read with s 415(1)) The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414 , to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision. [46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [87] - [97] ) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. 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.


case_title: MZXCL v Minister for Immigration and Citizenship [2008] FCA 1770


case_title: MZXQS v Minister for Immigration and Citizenship [2009] FCA 97 , 107 ALD 33