case_text: Even if there was information which fell within s 424A(1) of the Migration Act , the information about China's one child policy dealt with an exception contained in s 424A(3)(a) ; see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [138] . 19 I am mindful of the fact that the appellant is not legally represented. I have given careful consideration to the reasons for decision of the Tribunal and the reasons given by the Federal Magistrate. I can see no jurisdictional error in the decision of the Tribunal nor can I see any error in the reasons of the learned Federal Magistrate. 20 Accordingly, the orders that I will make are that the appeal be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 17 November 2006 The appellant appeared in person Counsel for the Respondent: J Mitchell Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 17 November 2006 Date of Judgment: 17 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1641.html


case_outcome: referred to

case_text: The first ground of appeal states in addition that the Federal Magistrates Court failed to give consideration to this claim. That may be an attempt to raise the ground to which the learned Federal Magistrate referred, namely a failure to make a genuine and realistic attempt to reach a bona fide decision. However, as the Full Court said in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [65] , that language does not create a kind of general warrant for review. It seems to me that what is meant by such a ground is that the decision-maker must not inflexibly apply a policy. There is no such suggestion in the present case. 13 The second ground of appeal is that the Tribunal did not provide an opportunity to the appellant to comment on materials which the Tribunal relied upon in its decision and that the Tribunal made an error of procedural fairness in relation to the case. In addition, the notice of appeal states that the Federal Magistrates Court failed to give consideration to this claim. This ground of appeal must also fail.


case_outcome: cited

case_text: It is well established that s 65(1) does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, what is required is a refusal of an application if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied; see for example Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.


case_text: Firstly, the natural justice hearing rule did not apply to the application for review because it was filed after the commencement of the operation of s 422B of the Migration Act ; see decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [60] to [67]. See also SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] .


case_text: There is nothing which could be said to constitute information within the principles stated by a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. That paragraph has been applied and adopted by other Full Courts.


case_outcome: applied

case_text: J, in Dutton v Republic of South Africa [1999] FCA 498 ; (1999) 162 ALR 625 , rejected the contention that the Court's power in s 43 of the Act empowered her to make an order that the Commonwealth pay the applicant's costs of an extradition proceeding which had been reviewed by the Court. Her Honour also rejected the contention that there was some broader jurisdiction in the Court to remedy injustice by the making of such an order. Her Honour's decision was upheld by the Full Court in Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575.


case_title: Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575


case_text: Mr Dunstan has appealed from a decision of the Administrative Appeals Tribunal given on 28 June 1996. The reasons for the delay in disposing of his appeal are explained in Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284 at [11] - [23] . It is not necessary to repeat them. 2 The AAT affirmed a decision of Comcare of 7 June 1995 under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) that (as the AAT described it) Mr Dunstan had "not at any time since February 1987 suffered an ailment that was contributed to in a material degree by his employment with the Australian Taxation Office". In his application for compensation of 26 May 1994, Mr Dunstan claimed to have suffered depression which he first noticed in June 1991 and for which he first sought medical treatment on 11 July 1991. He claimed to have been unfit for work because of his depression only for the periods 11 to 16 July 1991 and 3 to 10 April 1992. He also said in the application that he had then returned to work on normal duties. At first sight, the amount in issue is small. 3 The application for compensation asserted that in August 1982 Mr Dunstan commenced supervision of another employee (the female employee) when working in the Department of Housing and Construction, and a sequence of events thereafter led to him suffering depression. The listed events extended between 1982 and August 1992, becoming much more frequent during 1992. Mr Dunstan claimed that the depression occurred while he was at work at his desk, and resulted from harassment by the female employee who was subordinate to him in his section, particularly after Mr Dunstan and then in April 1990, the female employee moved to the Australian Taxation Office (ATO). 6 In my view, Mr Dunstan had adequate time to prepare for the hearing. The fact that the matter was to be listed for hearing as soon as appropriate had been made clear at directions hearings for some considerable time. Its listing was deferred pending resolution of another matter in which Mr Dunstan was applicant, in which judgment was delivered on 21 December 2005: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885 ( Dunstan (No 2) ). He was then required to indicate whether he intended to proceed with this application at all, and on 2 May 2006 he said that he wished to do so. The hearing was then listed for 20 July 2006, and he was to file his outline of contentions by 7 July 2006. Over the period of about nine weeks to 7 July 2006, Mr Dunstan was impaired in his preparation by being moved from prison to prison on a number of occasions and the associated disruption to his access to materials. However, I was not persuaded the disruption prevented him from having adequate time to prepare for the hearing, especially having regard to his detailed notice of appeal of 26 July 1996 and the amendment to it filed on 6 September 1996, and to the nature of the application itself. It is an application by way of appeal limited to questions of law: s 44 , Administrative Appeals Tribunal Act 1975 (Cth). 7 I also did not consider the hearing should be adjourned while the prospects of Mr Dunstan being aided by counsel procured under O 80 of the Federal Court Rules were explored. This is not a matter where I would make an order under O 80. The issues are quite confined. The amount involved is small. There is no element of general interest or public interest in its outcome; the determination of the application involves the application of principles to legislation that are frequently traversed. And Mr Dunstan, by his detailed notice of appeal, had identified quite fully and cogently the points he wished to raise. Moreover, the request of Mr Dunstan for an order under O 80 was made only orally at the hearing when it could, and should, have been made much earlier. 8 On 15 June 1995, the then Disability Discrimination Commissioner decided not to inquire into a complaint Mr Dunstan had made against Comcare under the Disability Discrimination Act 1992 (Cth) in respect of its decision subsequently reviewed by the AAT and now the subject of this application. The ground for that decision was that the SRC Act provided a suitable avenue to review Comcare's decision. Mr Dunstan sought to have the decision of 15 June 1995 reviewed by the President of HREOC. The President, by memorandum of 16 August 1995, agreed with that decision but deferred a final decision until the investigation of Mr Dunstan's complaints against the ATO and others for discrimination contrary to the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth) were completed. The inquiry into those complaints was discontinued on 2 April 1997. The evidence shows that the President did not then finally resolve the matter addressed in his memorandum of 16 August 1995, apparently through oversight, but the President of HREOC has now terminated that inquiry by notice of 10 July 2006. Mr Dunstan's proceedings challenging the decision of 2 April 1997 (and bringing other claims) were dismissed on 21 December 2005: Dunstan (No 2) . Mr Dunstan has indicated that he may now seek judicial review of the decision of the President of HREOC made on 10 July 2006. That is not a reason to defer the hearing and determination of this application. If there is reviewable error in that decision, it can be remedied. Such proceedings, if instituted, will not lead to a decision as to whether the AAT decision now under review by the Court is infected with legal error. That allegation has been made by Mr Dunstan. In my view resolution of the allegation should proceed, and there is no reason why the foreshadowed proceedings against the President of HREOC should delay its resolution. 9 I note also that, at certain points, Mr Dunstan has indicated that he may seek to amend the grounds of the present application against Comcare to allege that its decision was a consequence of fraudulent conduct, and that the AAT decision was either invalid because it was a review of a fraudulently procured decision, or was itself somehow procured through fraudulent conduct. The amendment application was never pursued, including in 2004 when I told Mr Dunstan that any such allegation should be made promptly so that the issue (if permitted to be raised and if requiring evidence) could be heard with the evidence at the hearing of the claims considered in Dunstan (No 2) . It was not pursued at the hearing of this application, although obliquely referred to in written submissions of Mr Dunstan in support of the adjournment. 10 The hearing was, however, adjourned for some three hours to enable Mr Dunstan to review certain documents relevant to the application which he had not brought to Court.


case_text: As my reference to the AAT's reasons indicates, I have had some difficulty in understanding parts of it. I am mindful that I should not read the reasons with an eye "keenly attuned" to the perception of error ( Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287), but that does not relieve me of the obligation to identify why the AAT decided as it did. It is part of the function of reasons for decision to provide that enlightenment. 31 Were the AAT's reasons along the lines contended for by Comcare, as discussed in [19] above, they would reveal no error of law of the kind first asserted by Mr Dunstan. However, I do not think that is how it reasoned. In my view, the AAT having in essence assumed the factual picture to be as Mr Dunstan asserted directed itself that the harassing conduct of the female employee which caused Mr Dunstan's depression, even if it occurred to a significant degree in the workplace, could not as a matter of law support a conclusion that his employment contributed in a material way to his depression. That view results from an analysis of the whole of its reasons, but in particular the concluding sentence in the passage referred to in [22] above. It is fortified by the AAT's comments about there being no need for expert medical evidence on the issue of causation, as the irrelevance of such evidence could only be on the basis that an expert medical opinion on the part played by certain (assumed) conduct of the female employee at work in her dealings with Mr Dunstan to the onset of his depression could not assist.


case_outcome: discussed

case_text: I consider that approach involves an error of law. Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626 established that a state of affairs to which a worker was exposed in employment and to which he would not otherwise have been exposed may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation: see generally the discussion in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 322-323. Treloar concerned a claim under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). That Act was replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (now the SRC Act). 34 Treloar itself concerned a claim under the 1971 Act, but it is clear that their Honours did not regard the introduction of materiality as changing, except in emphasis, the approach to causation laid down by the High Court in Semlitch . That accords with the words of the definition itself. The concept of materiality in the definition of "disease" was discussed by the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 per French and Stone JJ at [64]-[70], although their Honour's decision was based on other considerations; Gyles J, the other member of the Full Court, dissented on the principal issue and did not consider the meaning of "material". The Full Court decision was reversed by the High Court: Canute v Comcare [2006] HCA 47 ; (2006) 80 ALJR 1578, but the meaning of "material" was not considered.


case_text: I consider that approach involves an error of law. Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626 established that a state of affairs to which a worker was exposed in employment and to which he would not otherwise have been exposed may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation: see generally the discussion in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 322-323. Treloar concerned a claim under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). That Act was replaced by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (now the SRC Act). 33 The requirement of a "material" contribution to the onset or aggravation of a disease was introduced in 1988 in the definition of "disease" in the now SRC Act. In Treloar , the Full Court (Sweeney ACJ, Sheppard and Foster JJ) at 323 said that the word 'material': "... served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of." 34 Treloar itself concerned a claim under the 1971 Act, but it is clear that their Honours did not regard the introduction of materiality as changing, except in emphasis, the approach to causation laid down by the High Court in Semlitch . That accords with the words of the definition itself. The concept of materiality in the definition of "disease" was discussed by the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 per French and Stone JJ at [64]-[70], although their Honour's decision was based on other considerations; Gyles J, the other member of the Full Court, dissented on the principal issue and did not consider the meaning of "material". The Full Court decision was reversed by the High Court: Canute v Comcare [2006] HCA 47 ; (2006) 80 ALJR 1578, but the meaning of "material" was not considered.


case_text: Treloar itself concerned a claim under the 1971 Act, but it is clear that their Honours did not regard the introduction of materiality as changing, except in emphasis, the approach to causation laid down by the High Court in Semlitch . That accords with the words of the definition itself. The concept of materiality in the definition of "disease" was discussed by the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 per French and Stone JJ at [64]-[70], although their Honour's decision was based on other considerations; Gyles J, the other member of the Full Court, dissented on the principal issue and did not consider the meaning of "material". The Full Court decision was reversed by the High Court: Canute v Comcare [2006] HCA 47 ; (2006) 80 ALJR 1578, but the meaning of "material" was not considered.


case_text: That conclusion depends upon the way Mr Dunstan made his claim to the AAT. It is not intended to indicate that an ailment which may constitute a disease may not also, in appropriate circumstances, constitute a mental injury within subcl (b) of the definition of injury. In Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31 ; (1996) 187 CLR 310, the High Court regarded the concepts of injury and disease as not mutually exclusive under the Workers Compensation Act 1987 (NSW). See also Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286 in respect of the Workers Compensation Act 1951 (ACT). Whether a similar approach should be adopted under the SRC Act does not specifically call for decision for the reason I have given.


case_title: Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286


case_text: substantial proportion of Mr Hu's written submissions concerned the alleged failure of his Honour to identify apparently forged documents provided to Mr Hu by Ms Moser of MARA. The first point to note is that it was not the task of the Federal Magistrate to investigate whether documentation provided by MARA to Mr Hu was forged by the migration agent. In the circumstances of this case it was the task of the Federal Magistrate to consider whether there were grounds for an order of review of the decision of the respondent for any of the reasons set out in s 5 of the ADJR Act (cf comments of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 94 ALR 11 at 26). Mr Hu's submissions in relation to this ground of appeal are, in substance, an attack on the qualifications and professional standards of his Honour in failing to identify forgeries claimed to exist by Mr Hu. In this respect this ground of appeal is completely without merit.


case_text: secondly, Mr Hu submits that the respondent failed to take into account relevant considerations in making the decision not to investigate. This is potentially a ground for an order of review in terms of s 5(1)(f) of the ADJR Act. In particular I note comments of Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360: But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] , Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-9)


case_text: on the basis that his Honour had discretion to order discovery in this case, no satisfactory case has been made to me warranting interference with the decision of his Honour in circumstances contemplated by Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 505. Second, and in any event, Mr Hu has not established that the interests of the administration of justice would have been served by his Honour making an order allowing discovery pursuant to s 45. I accept the submission of the respondent that, in light of the fact that the first time Mr Hu raised the issue of discovery was at the hearing itself before his Honour, it would not have contributed to the "fair and expeditious conduct of the proceedings" for his Honour to have ordered discovery at such a late stage. Ground 6: Failure by Federal Magistrate to identify apparent forged information in documents from filed affidavit


case_text: NAQR & Anor (No. 1) v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 271 Driver FM took the view that there is a rebuttable presumption in proceedings in the Federal Magistrates Court that discovery and interrogatories will not be permitted, consistent with Parliament's direction under s 33 of the Federal Magistrates Act that the Court should act informally and use streamlined procedures (at [5]). In my view this accurately represents the position in respect of s 45 of the Federal Magistrates Act . I also consider however that s 45 of the Federal Magistrates Act vests Federal Magistrates with discretion to order discovery in the circumstances prescribed by the section. In my view the fifth ground of appeal cannot be substantiated for two reasons.


case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59


case_title: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286


case_text: Three months after NAOA [2004] FCAFC 241 was decided, the High Court decided Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 where at 10-15 [28]-[41] McHugh, Gummow, Callinan and Heydon JJ analysed the course of a hearing before the tribunal based solely on the decision record. They noted ( NAFF 221 CLR at 10 [28] and see too at 5 [9]) that without access either to the tape recording or transcript of the hearing before the tribunal it was not easy for the Court to appreciate the detail of everything that happened at the hearing. I consider that the Full Court in NAOA [2004] FCAFC 241 at [21] simply made its comments based on the particular facts of that case. As is clear from NAFF [2004] HCA 62 ; 221 CLR 1 , the tribunal's decision record alone is evidence of what happened at the hearing.


case_title: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 8

case_text: The function of a court is to discern whether the tribunal has arrived at its decision on the merits by a procedure authorised by, and in conformity with, the enactment which conferred the power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95-96 [14] - [16] ; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [37] - [41] per myself.


case_text: The Minister's argument conflated the weight which may be given to evidence capable of proving a fact with the ultimate fact sought to be proved by that evidence. As Dixon J pointed out in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 363, the nature of the issue necessarily affects the process by which the tribunal of fact can attain a reasonable satisfaction of the occurrence of an event. He said reasonable satisfaction was not a state of mind that was attained or established independently of the nature and consequence of the fact or facts to be proved: Briginshaw 60 CLR at 362. This reflects s 140 of the Evidence Act : see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] per Weinberg and Bennett JJ and myself. Thus, in Rejfek v McElroy (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said that no matter how grave the fact which was to be found in a civil case, the mind had only to be reasonably satisfied and had not, with respect to any matter in issue in such a proceeding, to attain that degree of certainty which is indispensable to the support of a conviction on a criminal charge.


case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 46


case_text: In a case like the present, it is important to bear in mind that the tribunal's reasons are those of the administrative decision-maker. Courts cannot be concerned with looseness in the language nor unhappy phrasing of such reasons, nor must they be analysed minutely and finely '... with an eye keenly attuned to the perception of error': see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, quoting from Collector of Customs v Pozzolanic [1993] FCA 322 ; (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ. Their Honours warned against turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. Nonetheless, as Brennan J observed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 662: 'The distinction between method and merits is sometimes elusive.'


case_text: This does not mean that the tribunal has to identify to the applicant for review the significance of the questions it puts or the ultimate issue to which the questions go, as Emmett, Weinberg and Lander JJ held in Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at 302 [87]-[89]. Nor does the tribunal need to give a running commentary on its thought processes. Nonetheless the tribunal must ensure that it identifies to the applicant for review the issues arising in relation to the review, in accordance with s 425(1) and gives him or her a real opportunity to give evidence and to present arguments on them. I am of opinion that the tribunal did not do so in respect of the issues under s 91R(3) and what it expected the appellant ought to have known based on her attendances at the Local Church in Australia. 62 I am grateful for the assistance I received from counsel for the parties and, in particular, for the willingness of counsel to act for the appellant pursuant to Order 80 of the Federal Court Rules . 63 The appeal should be allowed. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 16 June 2008 Counsel for the Appellant: DK Catterns QC, HPT Bevan Counsel for the Respondents: S Lloyd Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 23 October 2007 Date of Judgment: 16 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/911.html


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_outcome: considered

case_text: After I reserved judgment, the Minister referred to what Beaumont, Merkel and Hely JJ said in NAOA v Minister for Immigration [2004] FCAFC 241 at [21] . They observed that it had not been open for the trial judge, on the evidence of the tribunal's decision record alone, to have made a finding that a matter had not been raised with the applicant at the hearing before the tribunal. They noted there that there was no transcript or affidavit before the trial judge as to what had occurred at the hearing. 32 Three months after NAOA [2004] FCAFC 241 was decided, the High Court decided Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 where at 10-15 [28]-[41] McHugh, Gummow, Callinan and Heydon JJ analysed the course of a hearing before the tribunal based solely on the decision record. They noted ( NAFF 221 CLR at 10 [28] and see too at 5 [9]) that without access either to the tape recording or transcript of the hearing before the tribunal it was not easy for the Court to appreciate the detail of everything that happened at the hearing. I consider that the Full Court in NAOA [2004] FCAFC 241 at [21] simply made its comments based on the particular facts of that case. As is clear from NAFF [2004] HCA 62 ; 221 CLR 1 , the tribunal's decision record alone is evidence of what happened at the hearing.


case_outcome: distinguished

case_text: It is implicit in the reasoning of the tribunal that such knowledge of Christianity and the Local Church, as the appellant had, was obtained in Australia to strengthen her claim to be a refugee: cf s 91R(3) of the Act. That flows from its rejections of her claim to have been a member of the Local Church in China and, based on s 91R(3), the genuineness of her attendances at the Sydney Church. Yet there is nothing in the tribunal's statement of decision and reasons which indicates that it put the appellant on notice that she had not had that knowledge before arriving here. Nor did it make such a finding expressly. There may be other limitations on the tribunal's use of s 91R(3) in relation to a person's religious belief as suggested by Young J, with whom Gyles and Stone JJ agreed in NBKT v Minister for Immigration [2006] FCAFC 195 ; (2006) 156 FCR 419 at 442-443 [91] - [97] , but these do not arise here. 51 The tribunal said that it had applied s 91R(3) of the Act to disregard the appellant's conduct in attending the Local Church here. Yet it accepted that the appellant had been able to provide details of Christian belief and of Local Church beliefs and practices. Those details were not criticised by the tribunal and appear to have been accurate, so far as they were sought. The appellant did not appear to be making a claim based on her conduct in Australia. Certainly, she did not do so in her application for a protection visa. Nor did the delegate consider such a claim. The tribunal did not recite such a claim, although it noted her evidence of her attendance at the Local Church in Blacktown.


case_title: Rejfek v McElroy (1965) 112 CLR 517


case_text: His Honour concluded that the principles discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 did not assist the appellant because she was 'clearly put on notice by the delegate's decision and the s 424A letter that the truth of her whole narrative was in issue' ( SZJYA [2007] FMCA 613 at [22] ). His Honour dismissed her argument that the tribunal had failed to comply with s 424A. 23 The appellant argued that: • his Honour erred in holding that it was not illogical, capricious or perverse for the tribunal to accept that in Australia the appellant had acquired knowledge of the Local Church and attended its meetings while concluding that she had not engaged in its activities in China as she claimed; • the tribunal failed to accord her procedural fairness in accordance with s 425 of the Act. The appellant argued that the delegate's decision had not identified or involved any finding that she had acquired knowledge of the Local Church and attended meetings only in Australia. Indeed, it would have been very difficult for the delegate to have made such a finding since the application for a protection visa was made within six weeks of her arrival her and did not refer to any involvement she had with the Local Church in Australia. That local involvement appears to have arisen at the end of the tribunal hearing (based on its recitation in its statement for decision and reasons of what happened then) and the tribunal's investigation of the letter dated 8 October 2006 from the Local Church; • the delegate had found that she had had a low key role within the Local Church in China and that the tribunal had not referred to this as an issue arising in relation to the decision under review for the purposes of s 425(1) of the Act, as explained in SZBEL 228 CLR at 162-164 [33]-[40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In effect, the appellant argued that she had not been informed that an issue arising on the review was that she had fabricated her association with the Local Church by attending meetings in Australia and gaining her knowledge of Christian beliefs and practices solely in the short period in which she was in this country, in particular the period between lodging her application and its refusal by the delegate. In this regard, she relied on the formulation that I had considered to be arguable when granting leave to appeal ( SZJYA [2007] FCA 1168 at [12] . 24 In SZBEL 228 CLR at 164 [38] the Court said that it was important to identify the issues arising in relation to the delegate's decision which was under review. Those issues determine whether rejection by the tribunal of critical aspects of an applicant's account of events was obviously open on the known material. 25 The Minister argued that it followed from the Court's reasons in SZBEL 228 CLR at 164-166 [39]-[49] that the delegate had rejected the appellant's account on the basis that there was no evidence to support her claims. Thus, he argued that the delegate could not accept her credibility and this finding put her on notice that the whole of her claim was in issue on the review. The Minister particularly relied upon what the Court had said in SZBEL 228 CLR at 165 [43]. Their Honours held that nothing in the delegate's reasons for decision in that case indicated that two identified aspects of SZBEL's account were in issue. Nor had the tribunal in that case identified those aspects of his account as important issues. In that case the delegate had not based his decision on those two matters. Prior to giving its decision, the tribunal had not challenged what SZBEL had said on the two matters, so that he was not alerted to them being live issues in the tribunal's decision against him. 26 The Minister argued that, based on the delegate's decision, the appellant here was on notice that her whole credibility and account were in issue. 27 Here, the tribunal dealt with an issue which was not before the delegate concerning the genuineness of the appellant's beliefs and current practising. It found that it did not accept that 'she is currently a genuine practitioner' and referred to s 91R(3) of the Act. 28 In SZBEL 228 CLR at 165 [47] the Court noted that there may well be many cases, where either the delegate's decision or the tribunal's statements or questions during a hearing sufficiently indicate to an applicant for review that everything he or she says in support of the application is in issue. They said that that indication could be given in many ways. If there were specific aspects of an applicant for review's account that the tribunal considered may be important to the decision and may be open to doubt, it had at least to ask the applicant to expand upon those aspects of the account and to explain why it should be accepted. 29 The Minister argued that because there was no transcript or affidavit evidence of what happened in the hearing before the tribunal, it was impossible to find on the material before me that the tribunal had not asked the appellant to expand upon the aspects of her account concerning her belief and practice of Christianity both in China and here, and to explain why it should be accepted. He argued that the fact that, after the hearing, the appellant had seen fit to provide the tribunal with the letter from the Local Church in Sydney showed that she was on notice that this was an issue. And, the Minister argued that whatever might be contained in the tribunal's statement of decision and reasons, it was not obliged to set out the full course of the hearing, but only to perform the duty imposed by s 430(1). Accordingly, he argued that it ought not be found that the tribunal's recital of so much of the hearing as appears in its statement of reasons and decision was full and complete. 30 The Minister submitted that where, as here, a party argues that something did not happen, namely that the appellant was not put on notice that the genuineness of her belief in Christianity was in issue, the only way that lack of notice could be proved was by tendering what actually happened at the hearing through either the transcript, a tape recording or an affidavit. He said that, absent such evidence, it would be mere speculation to conclude that the fact asserted by the appellant here had been proved. 38 As the Court pointed out in SZBEL 228 CLR at 160 [25], what is required by procedural fairness is a fair hearing, not a fair outcome. The trial judge said that the appellant had clearly been put on notice by the delegate's decision in the s 424A letter that the truth of her whole narrative was in issue. I do not agree that that is so or that it was sufficient. First, in SZILQ 163 FCR at 316 [33] Buchanan J observed, correctly, that it is an essential premise of s 91R(3) that an applicant for review have a proper opportunity to satisfy the tribunal (or the Minister or a delegate) that the conduct in Australia which is said to be relevant was not engaged in just for the purpose of strengthening his or her claim to be a refugee. 44 In SZBEL 228 CLR at 163 [36], the Court said that in the ordinary situation of an applicant attending a hearing before the tribunal following an invitation under s 425(1): '... unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.' 45 Here, the appellant was found by the tribunal to be '... able to provide details of Christian belief and of Local Church beliefs and practices ...'. The tribunal said that her reasoning for becoming a member and leading a group to prevent smoking was not credible. It added that, '... [i]n addition she was unable to provide details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia' (emphasis added). 46 Next the tribunal referred to the appellant's evidence and subsequent response to the s 424A letter. It noted that she had said, both at the hearing and in the response to the s 424A letter, that the Local Church did not mix with the Chinese registered church. In evidence she had told the tribunal, however, that the Local Church accepted other churches, whereas country information was to the contrary. The tribunal considered this was an issue for it. 54 The tribunal was required, by s 430(1)(d) of the Act, to refer in its statement '... to the evidence or any other material on which the findings of fact were based'. The tribunal gave a number of reasons stating that it found shortcomings and implausibilities in the appellant's knowledge of some Local Church doctrines. But, the delegate had not based his or her decision on this aspect or on the suggested Australian acquisition of knowledge by the appellant: cf SZBEL 228 CLR at 165 [45]. I agree with Buchanan J who observed in SZILQ 163 FCR at 316 [33] that it is an essential premise of s 91R(3) that the applicant for review have a proper opportunity to satisfy the tribunal (or decision-maker) of the matters with which that section deals. 57 The appellant had no opportunity to give evidence or to make submissions, in accordance with s 425(1), that she had not just learnt what she knew about Christianity and the Local Church since arriving here. That was a denial of procedural fairness: SZBEL 228 CLR at 165 [44]. 58 The tribunal's statement of its decision and reasons indicated that it asked the appellant about basic Christian doctrine as well as doctrines of the Local Church. The tribunal questioned the appellant as to her selection of the Local Church as opposed to some other denomination. Although it did not have an obligation to set out everything that occurred at the hearing, I infer from the detail of its recitation of the questioning and answers at the hearing that it had set out the substance of all of the matters which it regarded as having significance to its function of conducting a review. While there is no transcript in evidence, nonetheless I am satisfied, in accordance with s 140 of the Evidence Act , that the tribunal did not ask the appellant why her account of being a Christian should be rejected: SZBEL 228 CLR at 166 [47]. 59 There is nothing in the tribunal's account of what occurred at the hearing to suggest that the appellant had been put on notice that the genuineness of her Australian participation in the Local Church's activities was in issue, as opposed to the level at which she claimed she participated. The tribunal did not record that the appellant had made any claim that her attendance at the Local Church in Sydney or religious practice in Australia supported her claim for a refugee visa. The tribunal said it disregarded this conduct, in assessing her case as required by s 91R(3). But instead of disregarding the conduct it used this conduct to find against the appellant. The tribunal's only investigation of what the appellant did in Australia in relation to the Local Church was to confirm the content of the letter concerning her attendance. It then speculated about the inability of the appellant to provide '... details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia' (emphasis added). This was one of the matters it stated had led it to conclude that she was not credible and had not become a member of the Local Church. Yet the tribunal's decision record does not record any account of the appellant being questioned about practice in Australia except simply in relation to her attendance at the Blacktown Local Church. 60 In SZBEL 228 CLR at 166 [47] the Court said: 'But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt , the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.' (non-italic emphasis added)


case_title: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724


case_text: The appellant argued that the tribunal's reasons do not suggest that she had been invited to give evidence or present arguments as to whether she had engaged in attending the Local Church in Australia either for the purposes of bolstering her claim for a protection visa or as going to her credibility generally. She relied on what Buchanan J had held in SZILQ v Minister for Immigration (2007) 163 FCR 304 at 315-316 [32]-[33] 37 The Minister argued that the tribunal's recitation of what had occurred at the hearing in the course of questioning the appellant put her on notice that her account generally was implausible. He argued that the inference from this material was that she was aware that her membership of the Local Church here was in issue. The Minister also argued that SZILQ 163 FCR at 315 [31] supported his submission that the tribunal did not have an obligation to put to the appellant that it would make a finding against her under s 91R(3), because that section placed the onus on the appellant of satisfying the tribunal that conduct engaged in in Australia was not done for the purposes of supporting the claim to a protection visa. 38 As the Court pointed out in SZBEL 228 CLR at 160 [25], what is required by procedural fairness is a fair hearing, not a fair outcome. The trial judge said that the appellant had clearly been put on notice by the delegate's decision in the s 424A letter that the truth of her whole narrative was in issue. I do not agree that that is so or that it was sufficient. First, in SZILQ 163 FCR at 316 [33] Buchanan J observed, correctly, that it is an essential premise of s 91R(3) that an applicant for review have a proper opportunity to satisfy the tribunal (or the Minister or a delegate) that the conduct in Australia which is said to be relevant was not engaged in just for the purpose of strengthening his or her claim to be a refugee. 54 The tribunal was required, by s 430(1)(d) of the Act, to refer in its statement '... to the evidence or any other material on which the findings of fact were based'. The tribunal gave a number of reasons stating that it found shortcomings and implausibilities in the appellant's knowledge of some Local Church doctrines. But, the delegate had not based his or her decision on this aspect or on the suggested Australian acquisition of knowledge by the appellant: cf SZBEL 228 CLR at 165 [45]. I agree with Buchanan J who observed in SZILQ 163 FCR at 316 [33] that it is an essential premise of s 91R(3) that the applicant for review have a proper opportunity to satisfy the tribunal (or decision-maker) of the matters with which that section deals.


case_text: But moreover, it found, as a fact that '... it does not accept that she is currently a genuine practitioner' (my emphasis). There is nothing in her claim for a protection visa, the delegate's decision, or in the tribunal's statement of decision and reasons which put the appellant on notice before the tribunal's decision was made that the appellant had engaged in conduct here to strengthen her claim and that such conduct, went to her credibility. Nor could the s 424A letter that was sent after the hearing raise any new issue so as to satisfy the requirement in s 425(1) that the tribunal invite the applicant for review to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 at [59] per Besanko J.


case_title: SZKTI v Minister [2008] FCAFC 83

case_text: As noted above, in its statement of decision and reasons the tribunal set out a summary of the evidence given by the appellant at the hearing. At the very end of that account the tribunal recorded simply that she had told it that she had been attending a Local Church at Blacktown (a suburb of Sydney) and that 'Tony' was the leader. Next, the tribunal recorded that after the hearing the appellant provided it with a letter from the Local Church in Sydney which confirmed her attendance there for the previous six months before she had moved to Brisbane one month earlier. It said that this information was confirmed when the tribunal contracted the Local Church (cp SZKTI v Minister [2008] FCAFC 83). 40 In the section of its decision headed "Findings and Reasons" the tribunal then made its adverse finding under s 91R(3). It did so on the express basis that it did not find the appellant to be credible. However, on its own account of its hearing and procedures, it never raised with her anything to suggest that the genuineness of her conduct here was an issue arising in relation to the delegate's decision (see: s 425(1)). Nor on the face of the delegate's decision could such an issue have arisen, since the delegate did not refer to any conduct of the appellant in Australia. 41 The issues concerning the appellant's conduct in Australia and her knowledge of the Local Church were not matters referred to by the delegate; rather they were new issues raised by the tribunal. And, the tribunal's findings about the appellant's conduct in Australia were integral to its findings that, at the time of its decision, first, she was not a genuine practitioner and secondly, that there was no real chance she would be persecuted for a convention reason if returned to China.


case_outcome: followed

case_text: power to receive evidence on appeal is given to the Court by s 27 of the Federal Court of Australia Act 1976 (Cth), which provides that the court has 'power ... in its discretion, to receive further evidence ...'. An identically worded provision in the Family Law Act 1975 was considered by the High Court in CDJ v VAJ [1998] HCA 76 ; (1988) 197 CLR 172. McHugh, Gummow and Callinan JJ referred to the established common law conditions under which new evidence might be admitted in an appeal by way of rehearing as articulated in Wollongong Corporation v Cowan [1955] HCA 16 ; (1955) 93 CLR 435, namely, that it was necessary both that the evidence sought to be adduced on appeal could not with reasonable diligence have been obtained for use at the trial, and that, if the evidence had been available at the trial, it was reasonably clear that an opposite result would have been produced (93 CLR at 444). In CDJ , their Honours held that these principles were inapplicable to a situation in which the discretion to admit further evidence did not arise under the common law but was given by statute (197 CLR at [97]). They held that the exercise of the discretion under a provision equivalent to s 27 of the Federal Court Act was essentially a matter of statutory construction, and should not be approached as though the common law principles 'conclusively indicate the proper construction of the statutory provision' (at [102]). In the exercise of the statutory power, their Honours held, the 'critical factor' was the subject matter of the proceedings with which the appeal was concerned, because 'the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry' (at [104]). They held that, under the statutory power, the court hearing the appeal 'weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion' (at [104]). A little later in their judgment, their Honours said that the common law rules as to the admission of fresh evidence 'cannot exhaustively define the scope of the discretion' under the statutory provision (at [108]; emphasis added). McHugh, Gummow and Callinan JJ then proceeded to advert to a number of considerations, any one of which may, in an appropriate case, influence the exercise of the judicial discretion to admit further evidence. First, they pointed out that the principal purpose of the statutory provision was to give the court a discretionary power to admit evidence which would demonstrate that the order under appeal was erroneous. This was a power which facilitated the avoidance of errors which could not otherwise be remedied by the application of conventional appellate procedures. Alternatively, and in practice in a subsidiary way, the purpose was to give the court discretion to admit further evidence to buttress the findings already made (at [109]). Secondly, their Honours referred to the principle that a provision conferring judicial power on a court should be construed liberally, and without the making of implications or the imposition of limitations not found in the words used by the legislature (at [110]). Thirdly, it was relevant that the appellate court was hearing an appeal against an order made in the exercise of original jurisdiction. It was unlikely that Parliament should have intended that the statutory provision (equivalent to s 27) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Fourthly, their Honours stressed that the availability of further evidence should not be treated as the equivalent of a ground of appeal, proof of which prima facie entitled the appellant to a new trial. Their Honours continued: "Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial." Fifthly, their Honours doubted the value of a 'usefulness' test, and rejected the proposition that an appellate court might admit further evidence merely because it was useful. Sixthly, the appellate court would 'readily' admit further evidence which was not in dispute, and which the court was able to evaluate and to take into account without the necessity for a rehearing. They noted that evidence of this kind was particularly likely to be admitted where it related to events occurring after the trial. In such a case the likely effect of the further evidence on the appellate court's view of the evidence before the trial judge was the important consideration. They continued: "Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial." Seventhly, their Honours said that the power to admit further evidence must be exercised judicially, adding a comment which related specifically to the Family Law Act but which, when considered more generally, amounted to the proposition that the discretion to admit further evidence should be affirmatively exercised only if that evidence were relevant and admissible according to ordinary principles, or by statute, and if there were no reason for suspecting the credibility of the evidence (at [115]). Eighthly, on the subject of a party's failure to adduce the evidence before the primary judge, their Honours said (at [116]): "Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section." The High Court judgment in CDJ has been considered twice by a Full Court. In Cottrell v Wilcox [2002] FCAFC 53 , the Full Court held that the judgment in CDJ was applicable to the discretionary power available under s 27 of the Federal Court Act (at [20]). Referring to that discretion, the Full Court said (at [21]): "That discretion is confined only by the requirement that it be exercised judicially and consistently with the judicial process: CDJ v VAJ at 185" It is, with respect, curious that the Full Court referred to page 185 of the Commonwealth Law Reports in this respect, since that page occurs within the reasons for judgment of Gaudron J, who dissented. Probably, however, the proposition upon which the Full Court relied is equally harmonious with the broad propositions underlying the judgment of the majority, McHugh, Gummow and Callinan JJ. Importantly for present purposes, I do not read Cottrell as precluding me from deriving guidance from the various specific considerations to which their Honours in the majority in CDJ referred, as set out above. The other Full Court judgment to which reference must be made is NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24. This was a judgment given on 25 February 2004 which, when amended by a corrigendum issued on 12 May 2004, contains the following passage: "In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53 ; [2002] FCA 232 at [18] [21], citing CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, ... , an opposite result would have been reached by the primary judge')." Although this passage contains an echo of the common law criteria referred to in Wollongong Corporation , and held to be inapplicable under a statutory provision like s 27 in CDJ , the Full Court's reference to CDJ does, on my reading of it, make it tolerably clear that it considered that CDJ ought to be applied in the exercise of the discretion under s 27. Particularly, the Full Court statement that, in relation to the second condition, it was not enough that the new evidence was relevant and otherwise admissible, and may have affected the result, is in broad conformity with the fourth consideration adumbrated in CDJ to which I have referred in par [17] above.


case_text: other Full Court judgment to which reference must be made is NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24. This was a judgment given on 25 February 2004 which, when amended by a corrigendum issued on 12 May 2004, contains the following passage: "In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53 ; [2002] FCA 232 at [18] [21], citing CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, ... , an opposite result would have been reached by the primary judge')." Although this passage contains an echo of the common law criteria referred to in Wollongong Corporation , and held to be inapplicable under a statutory provision like s 27 in CDJ , the Full Court's reference to CDJ does, on my reading of it, make it tolerably clear that it considered that CDJ ought to be applied in the exercise of the discretion under s 27. Particularly, the Full Court statement that, in relation to the second condition, it was not enough that the new evidence was relevant and otherwise admissible, and may have affected the result, is in broad conformity with the fourth consideration adumbrated in CDJ to which I have referred in par [17] above.


case_text: Counsel for Tristar relied on the decision of this Court (Branson J) in the case of Re Cortaus Limited (in liq); Sheahan v Joye & Ors (No. 2) (1996) 20 ACSR 576, in support of his submission that the balance of convenience favoured the grant of such relief. In that case, each of the first, fifth, sixth and seventh respondents had been issued with a summons pursuant to s 596B of the Corporations Law 2001 (Cth) for examination relating to the affairs of a company in liquidation, Cortaus Limited. It was not in dispute that a final determination of the issues heard by a Full Court of this Court earlier in Southern Steel Supplies Pty Ltd & Anor v Favelle Favco Holdings Limited might result in a determination that this Court lacked jurisdiction to issue summons pursuant to s 596B of the Corporations Law. Her Honour also noted that such final determination might also result in termination, to use her expression, 'a neutral term', of the appointment of Mr Sheahan as liquidator of Cortaus Limited. She observed that if Mr Sheahan's appointment as liquidator of Cortaus Limited were to be terminated, he would lose his qualification as an eligible applicant for the issue of a summons within the meaning of s 596B of the Corporations Law. In response to a submission on behalf of these respondents that the principal prejudice to each was identified as that of being required to travel to Adelaide and there submit to questioning with respect to matters about which they could otherwise not be required to speak, and that the additional prejudice which, at least, some of the respondents would be likely to suffer was identified as interference with their respective professional practices and a measure of loss of income, her Honour responded at 578 in the following terms: 'If the respondents are required to attend for examination relating to Cortaus, and are so examined, and it is subsequently determined that this Court had no jurisdiction to issue the summonses respectively served upon them, their civil liberty to attend to their ordinary affairs without interference, and to keep to themselves information unless and until they choose to disclose it, will have been seriously interfered with.' In my view, that case was very different from the situation here. The persons summonsed were all parties to the inter-partes proceedings. They were required for examination. Here Tristar, a company, is merely required to produce documents, albeit under compulsion. Tristar cannot claim balance of convenience for the interruption caused to the daily lives of its employees, be they directors or members of the union or unions to which their unionised employees belong. It was different in Cortaus where the summonsed parties were parties to the proceeding itself. I am not persuaded in all the circumstances that the interlocutory relief in the form of the second alternative should be granted when to do so would only impede the ability of the Commission to efficiently conduct the Inquiry according to its terms of reference. The claim for interlocutory relief is refused.


case_text: Counsel for the Minister submitted that, first, even if s 164(1) of the IR Act is invalid by reason of s 16(1) of the WPR Act, that did not render para 146(1)(d) of the IR Act invalid so as to prevent the continuation of the Inquiry. Second, he submitted that the use of the Commission's powers to summons witnesses would not cause obligations to be binding upon Tristar or its employees, respectively qua employer and employee as defined in s 16(1) of the WPR Act. And third, he submitted that, moreover, the obligations that may be imposed under s 164(1) of the IR Act cannot be said to prescribe the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations, referring me to what had been said by Gaudron J in the High Court in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining & Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at 375 [84] , [85].


case_outcome: affirmed

case_text: This is an appeal from a judgment of the Federal Magistrates Court ( SZKEJ v Minister for Immigration & Citizenship [2007] FMCA 838) dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), not to grant the appellant a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act). 2 The appellant, a citizen of Pakistan, arrived in Australia on 28 August 2004 and lodged an application for a protection visa on 5 October 2004. He claimed to fear persecution for political reasons because of his involvement with the Pakistan Muslim League of which he was the local Area President. 3 On 22 October 2004, a delegate of the first respondent, the Minister for Immigration and Citizenship, refused the application. The Tribunal affirmed that decision. An application to the Federal Magistrates Court resulted in orders by consent remitting the matter to the Tribunal. A differently constituted Tribunal heard further evidence from the appellant and again affirmed the decision to refuse a protection visa. 4 The essence of the Tribunal's decision was that, as a result of a number of inconsistencies between the evidence contained in his protection visa application, the evidence he supplied at the first Tribunal hearing and the evidence he supplied at the second Tribunal hearing, the appellant was not a credible witness. As a result, the Tribunal did not accept the appellant's claims to have suffered persecution in Pakistan, nor was it satisfied that he faced a real chance of persecution were he to return there. Accordingly, the Tribunal determined that the application did not satisfy the criterion for a protection visa. 5 The grounds of the application for review in the Federal Magistrates Court were as follows: "(1) The Tribunal relied on the previous RRT decision with much information without giving the applicant opportunity to comment upon the information given to the Tribunal before and during the interview which give rise to breach of s.424 of the Migration Act . (2) Whilst the Tribunal has leeway as to how the provided information is interpreted, the decision involves jurisdictional error affecting the decision as the Tribunal has erroneously adopted the approach that generally documents obtained from Pakistan are fake. The Tribunal could have checked the authenticity of the documents from the issuing agencies through Australian overseas post. (3) The Tribunal has erred in failing to make enquiry to the adequacy of the applicant's claim that he was arrested, detained and gaold (sic jailed) for considerable period of time. (4) The Tribunal has erred in making findings that the documentary evidence provided is fake and fail to take into account matters within jurisdictional facts and erroneously failing to consider such facts." Turner FM considered and rejected each of those grounds and dismissed the application.


case_text: The Tribunal's decision not to accept the appellant's documents as a reliable corroboration of his claims was based in part on an inconsistency between those documents and his oral evidence. There is no evidence that the Tribunal alerted the appellant to this issue. Although not relied upon by the appellant, I raised that point with counsel for the respondent. I accept the submission that the Tribunal's reasoning cannot be characterised as constituting "information" within the meaning of s 424A(1)(a) ( SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]). It was not obliged to notify the appellant in advance of its doubts arising from the inconsistencies. 12 The appeal is dismissed and the appellant is to pay the costs of the first respondent. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 7 December 2007 The Appellant appeared in person Counsel for the First Respondent: Ms V McWilliam Solicitor for the First Respondent: Clayton Utz Date of Hearing: 15 August 2007 Date of Judgment: 7 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1899.html


case_text: Section 425(1) of the Act, subject to the exceptions in subsection (2), requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is clear that the appellant was given such an invitation. Further, the appellant was given the opportunity to rebut the Tribunal's inference that the documents were not authentic. ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.)


case_text: As Bowen CJ observed in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233-4, s 50 provides for an encroachment on the principle of open justice. Whilst open justice is the underlying assumption of the section, that public interest may be affected by the need to prevent prejudice to the administration of justice. 24 What is required is a "weighing in the scales" of the countervailing public interests involved: see Parish at 234 per Bowen CJ. The public interest in the need to do justice between the parties may not be the only public interest to be weighed against the principle of open justice: Johnston v Cameron [2002] FCAFC 251 ; (2003) 195 ALR 300 at [24] per Branson J. 25 Section 50 confers a broad discretionary power to depart from the prima facie rule of open justice and the weight to be given to that interest will vary from case to case: see Parish at 254 per Deane J. His Honour dissented in the result but his approach to the construction and effect of the section has not been doubted. 26 The balancing process involves an assessment of a variety of factors including the importance of the evidence in the conduct of the proceedings and to an understanding of the the result: Parish at 256 per Deane J. 27 The cases in which an order may be necessary to prevent prejudice to the administration of justice vary widely; they include cases where, in the absence of a confidentiality order, the subject matter of the litigation may be rendered nugatory: Parish at 233 per Bowen CJ. 28 The Court will respect legitimate claims for confidentiality which should not be unduly discounted in the weighing process. Legitimate expectations of confidentiality "as to private and confidential transactions" should not be lightly disregarded: Parish at 255 per Deane J. 29 The degree of encroachment on the principle of open justice is an important factor to be weighed in the balance. Thus, the Court will guard against proceeding behind closed doors and it will also lean against a practice of unduly restricting public access to evidence: Parish at 236 per Bowen CJ. The observations of Sackville J in Seven Network Limited v News Limited (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1 at [27] are to similar effect, though in a different context. 30 The weight to be given to the principle of open justice may vary according to whether the other party to the proceeding opposes or consents to the making of an order under s 50: Parish at 254 per Deane J. 36 In Parish at 255, Deane J pointed to the need to avoid undue discounting of legitimate claims to confidentiality. He said to do so may discourage access to the courts for vindication of legal rights. Equally, the failure to give weight to a respondent's claim for confidentiality may be prejudicial to the administration of justice because it may bear upon the practical ability of a respondent to meet claims made against it. 37 It is therefore necessary for me to weigh this public interest in the balance to determine whether an order under s 50 is necessary to prevent prejudice to the administration of justice which warrants a departure from the principle of open justice. 38 It is clear from the authorities that not every claim to confidentiality will be sufficient to warrant protection through an order under s 50. Weight may be given only to "legitimate claims": see for example Parish at 255. 39 I do not consider the opinions expressed by Ms Davies to be mere assertions lacking any evidentiary support. It seems to me that a fair reading of the SCAG Procedures, the COAG Compendium and the Policy Paper suggests the confidentiality arrangements between the responsible Ministers were put in place to achieve cooperation between all of the governments on a matter of national importance. 40 The confidentiality policy agreed to in the Policy Paper on 26-27 July 2007 confirmed the principle which already applied to SCAG censorship discussions and documents under clause 5(e) of the SCAG Procedures and principle 14 of the COAG Compendium. 51 Second, whilst I do not find that disclosure of the confidential material would render nugatory or destroy the entire basis of the National Classification Scheme, I have taken into account the risk of damage to its effective operation: Parish at 235. 52 Third, there is only a slight degree of encroachment on the principle of open justice in the order restricting access to the confidential material: Parish at 236. This is because I do not consider that the order substantially impinges upon the transparency of the process or of my reasons. I deal with this in my fourth reason below. 53 Fourth, the evidence in the confidential material was of little importance in the conduct of the proceeding. Nor is it of any real assistance in understanding the result: Parish at 256. The public interest in being able to follow the way in which the proceedings were resolved is not, in my opinion, affected by the restriction of access to the minutes and papers referred to in the order which I made under s 50 of the Act. 54 It follows that I propose to dismiss the application to revoke the Orders which I made on 6 September 2007 in relation to the extracts of the minutes and the copies of the papers that were before SCAG. 55 However, it does seem to me that in balancing the competing interests, including the need to understand my reasons, I ought to vary the orders so as to permit access to [131] [134] of Adultshop's written submissions to which I referred in my reasons for judgment.


case_text: What is required is a "weighing in the scales" of the countervailing public interests involved: see Parish at 234 per Bowen CJ. The public interest in the need to do justice between the parties may not be the only public interest to be weighed against the principle of open justice: Johnston v Cameron [2002] FCAFC 251 ; (2003) 195 ALR 300 at [24] per Branson J. 31 There must be a strong basis for departure from the principle of open justice because to do so may affect the public interest in being able to understand the way in which disputes are resolved by the Court: Johnston v Cameron at [75] per Tamberlin J. 32 There are two principal elements of the administration of justice which the Attorney wishes to protect by an order under s 50. They extend beyond the public interest in the need to do justice between the parties and involve the public interest in the proper functioning of the National Classification Scheme. 33 The elements of the public interest which the Attorney invokes are: • the effective operation of the National Classification Scheme through the proper and effective functioning of SCAG; and • the ability of the Commonwealth, the States and Territories to cooperate through Ministerial Councils in order to develop policy and take joint action to resolve issues arising between those governments.


case_text: First, the reasons customarily given to justify a claim for public interest immunity are the need to safeguard the proper functioning of the executive arm of government and the public service: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 39 and 56. They are not concerned with the public interest in the need to promote cooperation between governmental authorities in a cooperative legislative scheme. 47 Second, public interest immunity may preclude from production and admission into evidence a class of documents. It may result in the dismissal of a charge or the rejection of a claim: Sankey v Whitlam at 56-57. An order under s 50 has a far more limited effect, albeit that it impinges upon the principle of open justice. 48 Third, unlike a claim for public interest immunity for a class of documents, the Court has the opportunity in an application for orders under s 50 , to inspect the documents. The inspection which I have undertaken confirms the views expressed by Ms Davies. 49 In weighing the balance between the principle of open justice and the prejudice to the administration of justice flowing from full disclosure of the subject material, I have come to the view that there is a strong basis for departing from the principle of full transparency. My reasons are as follows.


case_text: The degree of encroachment on the principle of open justice is an important factor to be weighed in the balance. Thus, the Court will guard against proceeding behind closed doors and it will also lean against a practice of unduly restricting public access to evidence: Parish at 236 per Bowen CJ. The observations of Sackville J in Seven Network Limited v News Limited (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1 at [27] are to similar effect, though in a different context.


case_text: The Federal Magistrate then dealt at length with the s 91R(3) point. He did so pursuant to a further amended application for review that was filed on 4 October 2007 and presumably stood in place of the original application for review. His Honour held that the matter was conclusively determined against the then applicant by the decision of Jacobson J in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648. In that case, Jacobson J held that s 91R(3) did not apply so as to require conduct engaged in by an applicant in Australia to be disregarded by the Minister unless the applicant relied upon such conduct to support a claim for protection. Counsel for the then applicant submitted that the decision in SZHFE was not correct and should not be followed. He put that submission somewhat boldly having regard to the fact that SZHFE had been the subject of an application for special leave to appeal to the High Court and that application had been refused. 12 By notice of appeal filed on 17 March 2008 the appellant relies upon the following grounds: "1. The Honourable trial judge failed to consider that the Tribunal accepted that 'the applicant is a member of Awami League and was involved in Dhaka city Awami League' in considering this matter trial judge made an error. 2. The Tribunal failed to comply with the notice of 424A of the Migration Act and the trial judge erred in considering this argument. 3. The Honourable trial judge made an error not to consider the applicant's involvement in Australia." 17 There are many difficulties with that submission. In the first place, it flies directly in the face of SZHFE, a case which has at least twice been considered and followed in this Court: see SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 at [11] and SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199 at [25] . SZHFE was the subject of an application for special leave to appeal to the High Court. That application was dismissed by Kirby and Callinan JJ, who expressly stated that they agreed with the analysis of Jacobson J. 22 Counsel for the appellant submitted that his client had merely responded to questions put by the RRT, and not volunteered any statement about his connection with the local support group. He argued that this meant that this case did not fall within the principle laid down in SZHFE. I am not persuaded by that submission. Nor am I persuaded by his alternative submission that it would be unfair to the appellant to allow regard to be had to his conduct after arriving in this country for the purpose of impugning his credibility but not in support of his claim for protection. There is nothing unfair about allowing a decision-maker to apply common sense when considering questions of fact while, at the same time, preventing the system of protection from abuse. The Federal Magistrate was correct to conclude that the RRT did not contravene s 91R(3). 23 It follows that the appeal should be dismissed. The appellant must pay the first respondent's costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 20 May 2008 Counsel for the Appellant: Mr J.R. Young Counsel for the First Respondent: Mr P Braham Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 20 May 2008 Date of Judgment: 20 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/722.html


case_text: The Minister submits that this notice of appeal seeks to reintroduce grounds of review that were not included in the further amended application and were either expressly abandoned, or not pressed, before the Federal Magistrate. The Minister submits that grounds 1 and 2 are insufficiently clearly defined to warrant any response. He refers to Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] - [48] . The Minister's submissions in that regard are plainly correct. Leave to rely upon grounds 1 and should be refused.


case_title: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158


case_text: There are many difficulties with that submission. In the first place, it flies directly in the face of SZHFE, a case which has at least twice been considered and followed in this Court: see SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 at [11] and SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199 at [25] . SZHFE was the subject of an application for special leave to appeal to the High Court. That application was dismissed by Kirby and Callinan JJ, who expressly stated that they agreed with the analysis of Jacobson J.


case_title: SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199


case_text: is not a case where proceedings have been discontinued before trial. In such cases it is relevant to consider and determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them: South East Queensland Electricity Board v Australian Telecommunications Commission (unreported Federal Court 10 February 1989, Pincus J); Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201.


case_text: leave to discontinue is required, as in this case, O 22 r 2(3) of the Federal Court Rules 1976 (Cth) does not provide expressly for the incidence of costs. Accordingly, I approached the matter having regard to the general discretion under O 62 r 3(1) underpinned by s 43(1) of the Federal Court of Australia Act 1976 (Cth): O'Neill v Mann [2000] FCA 1180 ; (2000) 101 FCR 160 at [12] . In this case, given the conclusion I had already reached, costs would have been ordered in favour of ASIC. There is no reason to depart from that usual result now.


case_title: South East Queensland Electricity Board v Australian Telecommunications Commission (unreported Federal Court 10 February 1989, Pincus J)


case_text: consider it important to take into account the penalty imposed on Walton by Ryan J. Walton's conduct was at least as serious as that of the Union, if not more serious. Walton could have resisted the coercive behaviour of the Union but took the easy way out. I do not consider it appropriate to impose a higher penalty on the Union than the one imposed on Walton. The $40,000 penalty on Walton, although within range, was (given the transient nature of the conduct) at the high end of the appropriate range. The penalty was assuaged by half of it being suspended. I do not consider a suspended penalty to be appropriate to an organisation such as the Union which is involved in the industry every day of its existence. I am mindful of the imposition by Tracey J of a $25,000 fine for a more serious breach of the BCII Act than that which occurred here. Considering the totality principle and all other factors referred to above, the appropriate penalty for the breach of s 43 of the BCII Act is $18,000. It must be borne in mind that the Union is not a profit making body but exists for the benefit of its members and is ultimately funded by those members; see Australian Competition & Consumer Commission v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517 at [8] per Gray J.


case_text: Draffin v Construction, Forestry, Mining and Energy Union [2007] FCA 2011 , Ryan J ordered that penalties be imposed on Walton for breaches arising from what occurred on 16 November 2005. The penalties were: $40,000 for breach of s 45 of the BCII Act; $10,000 for breach of s 298K(2)(d) of the WR Act with half of the total penalty being suspended for 12 months. The penalties were agreed between Mr Draffin and Walton. His Honour considered them to be within the appropriate range especially having regard to the suspended component of the penalty; see Draffin at [3]. Although there are three breaches of separate statutory provisions, there was essentially one unlawful act committed by the Union respondents. That act was the request to Walton that Monjon leave the site because its employees were employed on AWAs. I do not consider it to be appropriate to punish any of the Union respondents more than once for one unlawful act. However, the totality principle requires that a penalty be imposed for each contravention arising out of a course of conduct, but the most serious offence may attract the vast bulk of the overall penalty. The strongest statutory expression of what occurred on 16 November 2005 is the statement that s 43 of the BCII Act was contravened. That is because that offence carries with it an element of coercion, reflecting negation of choice for Walton. That offence should attract the highest penalty and the others significantly smaller ones. I consider it important to take into account the penalty imposed on Walton by Ryan J. Walton's conduct was at least as serious as that of the Union, if not more serious. Walton could have resisted the coercive behaviour of the Union but took the easy way out. I do not consider it appropriate to impose a higher penalty on the Union than the one imposed on Walton. The $40,000 penalty on Walton, although within range, was (given the transient nature of the conduct) at the high end of the appropriate range. The penalty was assuaged by half of it being suspended. I do not consider a suspended penalty to be appropriate to an organisation such as the Union which is involved in the industry every day of its existence. I am mindful of the imposition by Tracey J of a $25,000 fine for a more serious breach of the BCII Act than that which occurred here. Considering the totality principle and all other factors referred to above, the appropriate penalty for the breach of s 43 of the BCII Act is $18,000. It must be borne in mind that the Union is not a profit making body but exists for the benefit of its members and is ultimately funded by those members; see Australian Competition & Consumer Commission v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517 at [8] per Gray J.


case_text: Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [40] , Tracey J set out a number of "potentially relevant and applicable considerations for determining the appropriate penalty for a contravention of the BCII Act". Those considerations include: The nature and extent of the conduct which led to the breaches. The circumstances in which that relevant conduct took place. The nature and extent of any loss or damage sustained as a result of the breaches. Whether there had been similar previous conduct by the respondent. Whether the breaches were properly distinct or arose out of the one cause of conduct. The size of the business enterprise involved. Whether or not the breaches were deliberate. Whether senior management was involved in the breaches. Whether the party committing the breach had exhibited contrition. Whether the party committing the breach had taken coercive action. Whether the party committing the breach had cooperated with the enforcement authorities. The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements. The need for specific and general deterrence. (i) the nature or extent of the conduct in breach of the BCII Act The action by the Union respondents led to Monjon being excluded from the site. There is no evidence that this led to any disruption to the site. Monjon received payment for the day on 16 November 2005. It had expected to work on "18 and 19 November and for a couple of weeks following that", according to [11] of the agreed statement of facts filed in the proceeding. The conduct whilst serious and discriminatory against Monjon was transient in nature and confined to a single request on a single day. There is no evidence whether Monjon picked up other work on the days it had expected to work on the site. There is no evidence of any loss to Walton. (ii) circumstances in which the conduct took place There was no issue about widespread or significant disruption to the site. The circumstances were confined as shown in the preceding paragraph. (iii) whether or not the breaches were deliberate After the events of 16 November 2005 and those referred to in Stuart-Mahoney , the Union conducted a seminar in May 2006 to enhance the chances of compliance with the BCII Act; see Stuart-Mahoney at [53]. It is also significant that the Union respondents admit that they have contravened the relevant statutory provisions. That is an aspect of contrition. (vi) corrective action The only corrective action was the holding of the seminar. (vii) cooperation The agreed statement of facts filed more than two weeks before the penalty hearing is evidence of cooperation with the relevant authorities. (viii) minimum standards enforcement The statutory purposes of the BCII Act are referred to in Stuart-Mahoney at [56]. As Tracey J said at [57]: The imposition of pecuniary penalties for contraventions of civil penalty provisions gives effect to the statutory purposes of the BCII Act. (ix) deterrence As Tracey J said in Stuart-Mahoney at [58], "[p]enalties must be imposed at a meaningful level if they are to act as a general deterrent to others". Specific deterrence is also a factor which informs the level of penalty in this case. (x) totality principle At [60] Tracey J said: Another factor to be considered is the totality principle. The principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing... The orthodox position requires the determination of appropriate penalties for each contravention arising from the same course of conduct. The aggregate figure is then considered to ensure that the penalty is an appropriate response to the conduct in question... (xi) previous conduct The closest relevant previous conduct is that identified in Stuart-Mahoney . In Stuart-Mahoney , the relevant events occurred over one month before 16 November 2005. However, no penalty was imposed until 19 September 2008. The circumstances of Stuart-Mahoney were more serious than the current circumstances in that the overtime ban in that case caused a greater disruption to the site than did the exclusion of Monjon in this case. It is significant that these events also occurred before the May 2006 seminar. Tracey J imposed a fine of $35,000 on the Union for breach of s 43 of the Act and $20,000 for breach of s 38. No unlawful industrial action arose in the present case, so s 38 is not relevant. The current breaches of ss 43 and 45 are less serious than the breach of s 38 in Stuart-Mahoney . In Stuart-Mahoney the overtime ban had a much greater disruptive effect on the site. (xii) conclusion


case_text: On 12 July 2007 the Full Court of this Court in Minister for Immigration and Citizenship v SZKKC 96 ALD 25 decided that the reference to " actual notification " in s 477(1) required, in relation to applications concerning the Refugee Review Tribunal, actual notification to an applicant of the Tribunal's decision through physical delivery to the applicant of a written statement prepared by the Tribunal in accordance with s 430(1) of the Act . 4 When the applicant appeared before me today with the aid of an interpreter, he stated that he had in fact lived at 79 Garfield Street, Wentworthville at all relevant times, except for occasional periods when he was not at those premises. He was unable to give any explanation, however, as to why correspondence from the Department was not opened or answered either by himself or his family. 5 The decision of the Federal Magistrate in the present case was given before the judgment of the Full Court. It is therefore based on an interpretation of s 477 which the Full Court has held to be incorrect, and is based on an error of law. Accordingly, the decision of the Federal Magistrate should be set aside on that basis. That being so, however, the question then arises as to the utility of remitting the matter back to the Federal Magistrate's Court for further consideration. This question arises because s 47 of the Act only requires the Minister to consider a valid application for visa, and a decision by the Minister that an application is not valid is not the same thing as a decision to refuse to grant the visa. The decision that the application is not valid is not merits reviewable by the Migration Review Tribunal, as noted in s 338 of the Act . 6 In this case, the decision of the Minister was that the application was not valid because it did not specify the residential address in the form. In a letter dated 13 September 2003 the department stated that: 'Recent Departmental investigations have revealed that the address you provided in the application is not a bona fide residential address. The Department has obtained information indicating that as at 19 August 2003 you did not reside at the address at the head of this letter. In addition, other persons have occupied the stated address since December 2002. The Department is not satisfied that you resided at the stated address at the time of the application. You may wish to apply again when you think you may be able to meet all the requirements for a valid application. In doing so, you must provide evidence of residing at the stated residential address in any future applications.' 7 Through the application of reg 2.07 of the Migration Regulations 1994 (Cth), an application for a visa that is made using an approved form is not valid if it does not set out the applicant's residential address in the form or in some second accompanying document. In the present case, the approval form does set out a residential address, but the Department has taken the view that this was not a bona fide residential address, and therefore rejected it as a residential address for the purpose of reg 2.07. 8 Although I consider that there was an error of law by the Federal Magistrate as a consequence of a misinterpretation of the provisions of the Act to which I have referred, I do not think there is any utility in sending the matter back to the Federal Magistrate for further consideration. Having regard to the limited evidence which is presently before me and the stringent and clear provision of the Act , the law seems to be quite clear that the Department considered the approval form to be invalid, and that such a decision is not reviewable by the Migration Review Tribunal. 9 Accordingly, while I find that the decision of the Federal Magistrate was in error in this matter, I am of the view that it is futile to remit the matter. I therefore am not prepared to grant the application for extension of time to file and serve the notice of appeal. 10 In relation to the question of costs, I think the appropriate order in the present case, having regard to the way in which events have transpired, is that there should be no order as to costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 7 November 2007 Counsel for the Respondent: L. Buchanan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 November 2007 Date of Judgment: 5 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1696.html