case_text: In Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , a Full Court of this Court cited the above passage with approval and continued: 22 Consideration of these difficulties shows the practical wisdom of the firm rule that the likelihood of conduct being misleading or deceptive is a question for the tribunal of fact and not for any witness to decide: General Electric Co (USA) v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, applied in a s 52 context by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 387. 23 Lord Diplock points out in General Electric that a different rule applies in the case of sales not to the general public but in specialised markets concerning persons engaged in a particular trade. In the present case the relevant market is that in which the consumers are business users of domain names. Such users constitute large sections of the public and are not participants in a specialised market in the sense discussed by Lord Diplock. 87 In its written submissions Cadbury cited numerous decisions which were said to involve facts or issues similar to the present case and statements of judges about the facts in those cases. For its part, Darrell Lea sought to draw different messages from those, and other, cases and statements. Without wishing to disparage the industry of counsel, I did not find this exercise particularly helpful. I repeat the statement of Lord Oliver in Reckitt & Colman Ltd v Borden Inc (1990) 17 IPR 1 at 7, quoted in the earlier judgment at [120]. Mutatis mutandis , similar considerations apply to the trade practices claims. As was pointed out in Domain Names and Interlego (see [49]-[50] above), these are jury questions. A jury would not be asked to consider what was said by judges in other cases because a jury has to apply legal principle to the facts before it, and no other facts.


case_outcome: applied

case_text: In Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , a Full Court of this Court cited the above passage with approval and continued: 22 Consideration of these difficulties shows the practical wisdom of the firm rule that the likelihood of conduct being misleading or deceptive is a question for the tribunal of fact and not for any witness to decide: General Electric Co (USA) v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, applied in a s 52 context by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 387. 23 Lord Diplock points out in General Electric that a different rule applies in the case of sales not to the general public but in specialised markets concerning persons engaged in a particular trade. In the present case the relevant market is that in which the consumers are business users of domain names. Such users constitute large sections of the public and are not participants in a specialised market in the sense discussed by Lord Diplock. 50 In Interlego AG v Croner Trader Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 Gummow J also said at 387: The issue of whether consumers have been or are likely to be deceived was described by Lord Diplock as a "jury question": General Electric Co (of USA) v General Electric Co Ltd [1972] 1 WLR 729; [1972] 2 All ER 507. His Lordship said (at 738; 515): [W]here goods are sold to the general public for consumption or domestic use, the question whether such buyers would be likely to be deceived or confused by the use of the trademark is a 'jury question'. By that I mean: that if the issue had now, as formerly, to be tried by a jury, who as members of the general public would themselves be potential buyers of the goods, they would be required not only to consider any evidence of other members of the public which had been adduced but also to use their own common sense and to consider whether they would themselves be likely to be deceived or confused. The question does not cease to be a 'jury question' when the issue is tried by a judge alone or on appeal by a plurality of judges. The judge's approach to the question should be the same as that of a jury. He, too, would be a potential buyer of the goods. He should, of course, be alert to the danger of allowing his own idiosyncratic knowledge or temperament to influence his decision, but the whole of his training in the practice of the law should have accustomed him to this, and this should provide the safety which in the case of a jury is provided by their number. That in issues of this kind judges are entitled to give effect to their own opinions as to the likelihood of deception or confusion and, in doing so, are not confined to the evidence of witnesses called at the trial is well established by the decisions of this House itself. 87 In its written submissions Cadbury cited numerous decisions which were said to involve facts or issues similar to the present case and statements of judges about the facts in those cases. For its part, Darrell Lea sought to draw different messages from those, and other, cases and statements. Without wishing to disparage the industry of counsel, I did not find this exercise particularly helpful. I repeat the statement of Lord Oliver in Reckitt & Colman Ltd v Borden Inc (1990) 17 IPR 1 at 7, quoted in the earlier judgment at [120]. Mutatis mutandis , similar considerations apply to the trade practices claims. As was pointed out in Domain Names and Interlego (see [49]-[50] above), these are jury questions. A jury would not be asked to consider what was said by judges in other cases because a jury has to apply legal principle to the facts before it, and no other facts.


case_outcome: cited

case_text: As to the application of Browne v Dunn in modern commercial litigation, see also Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (1998) ATPR (Digest) |P 46-183 at 50,323, approved on appeal: J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 at [103] - [107] .


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: Cadbury submitted that the failure of Darrell Lea to adduce evidence (expert or lay) as to the effect that third party use of purple has adversely impacted Cadbury's reputation in Cadbury purple meant that the Court ought to draw a Jones v Dunkel (1959) 101 CLR 298 inference that any evidence it might have sought to adduce would not have assisted its case in this respect. I do not agree. There was substantial evidence of the fact of third party usage given by Darrell Lea's Mr Michael Lea (earlier judgment [52]-[54]) and evidence of Cadbury's "Co-existence Agreement" with Nestlé under which Cadbury agreed not to object to Nestlé's use of get-ups for Violet Crumble (a chocolate-coated honeycomb bar which might be said to verge on the iconic), Wonka, Quality Street and Polly Waffle, all of which featured purple ([55]-[56]). For its part Cadbury adduced evidence of its efforts to restrain third party usage, which met with mixed success ([57]-[67]). There was evidence of actual third party usage in the present case sufficient for the Court to make its own findings. 59 Mr Riches said that the third party products "did not come close to dominating the chocolate confectionery market in the same way as Cadbury Dairy Milk" and that no other brand consistently used purple as a "brand identity element" in promotional campaigns. Dr Stavros thought that purple used with Polly Waffle and Violet Crumble were "product specific instances of the use of a colour, rather than a corporate or master branding or mega branding". However, the lack of specialised knowledge of the confectionery market of these witnesses has already been noted. 60 Dr Stavros said that some consumers would pick up a Violet Crumble, see the Nestlé brand and "make the connection between those brands [ie Nestlé and Cadbury] and be aware that there's a distinction between those organisations". He continued: There's a scope though for other consumers to see the purple, relate that to the Cadbury brand and either believe that the product comes from Cadbury, or that there is some association between those organisations, I think that's possible it's very possible. Dr Stavros' hypothesis, involving as it does a very well known non-Cadbury manufacturer and a very well known non-Cadbury product, is speculative and quite unrealistic.


case_text: The evidence of the Cadbury experts had been excluded ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [8] - [18] ) on the ground that an expert's opinion is not admissible as to matters within the experience and knowledge of a judge or jury ( The Queen v Turner [1975] QB 834 at 841, Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111) and specifically in relation to "ordinary human nature, that of people at large" ( Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119) such as purchasers of everyday consumer items ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ); see also JD Heydon Cross on Evidence (7 th Australian ed, 2004) at 930.


case_text: One additional aspect of trade practices law which should be mentioned is that conduct which results in mere confusion, or consumers being "caused to wonder", does not amount to misleading and deceptive conduct within the meaning of the statute. The position is to be distinguished from that in trade mark law. In Parkdale Custom Built Furniture v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198 Gibbs CJ said: In McWilliam's Wines Pty Ltd v McDonalds System of Australia Pty Ltd (1980) 49 FLR 455 it was rightly held by Smithers J and by Fisher J that to prove a breach of s 52 it is not enough to establish that the conduct complained of was confusing or caused people to wonder whether two products may have come from the same source, and that Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 , a decision on the Trade Marks Act 1905 (Cth), as amended, is distinguishable. I need not add to what their Honours said on this subject (1980) 49 FLR, at pp 458-459, 475-476. Likewise in Taco Co (Aust) Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 201 Deane and Fitzgerald JJ said: Conduct which produces or contributes to confusion or uncertainty may or may not be misleading or deceptive for the purposes of s 52. In some circumstances, conduct could conceivably be properly categorized as misleading or deceptive for the very reason that it represents that confusion or uncertainty exists where, in truth, there is no proper room for either. Ordinarily, however, a tendency to cause confusion or uncertainty will not suffice to establish that conduct is of the type described in s 52. The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52. Much of Dr Gibbs' opinions as to misinference and misassociation would seem to be examples of the "caused to wonder" reaction by consumers (and others such as employees and competitors). Insofar as they are, they would seem to raise matters outside the purview of the Trade Practices Act or the tort of passing off, even if they are matters of commercial concern to Cadbury.


case_text: In Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 Tamberlin J discussed the application of the Rule in Browne v Dunn in the context of a copyright infringement case where one issue was whether a Mr Ron Lewy had, as he claimed, spoken by telephone to a German company and received certain assurances about copyright arrangements in Australia in respect of CDs which Mr Lewy's company was about to import. The trial judge had not accepted that the words were said. In the Full Court Tamberlin J said at 14-15: The submission made to this court is that because it was not specifically and expressly put to Mr Ron Lewy, in cross-examination, that the statement was not made, the rule of professional practice enunciated in Browne v Dunn (1893) 6 R 67 was breached and therefore the evidence should have been ignored or the matter reopened. The failure by his Honour to address the point was said to amount to procedural unfairness. Counsel referred to a number of decisions including Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 554 7. Ultimately, the rule in Browne v Dunn is one of procedural fairness. Whether his Honour should have taken any action in relation to the failure to put the disputed words called for the exercise of a discretionary judgment on his part. As Hunt J has pointed out, in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 26 7; (1983) 44 ALR 607 , the rule is designed to ensure fairness to the witness so as to enable the witness to deal with the disputed matter and perhaps to give further evidence in corroboration or to contradict any inference which may be sought to be drawn. See also Dolan v Australian & Overseas Telecommunications Corp [1993] FCA 202 ; (1993) 42 FCR 206 at 207 8; [1993] FCA 202 ; 114 ALR 231 ; Marelic v Comcare [1993] FCA 599 ; (1993) 121 ALR 114 at 119 20. It is common ground that it was not expressly put to Mr Ron Lewy that the words were not said. In commercial litigation (including intellectual property matters), where issues are clearly defined, there will often be no point in formally challenging every aspect of the evidence which is contested. There will often be a large number of matters in respect of which it will be apparent from the pleadings and particulars there is clearly a contest. Where this is the case the principle need not be applied in an unduly technical way. After discussing the evidence, his Honour continued: The rule may be satisfied where the witness is on notice that the version given is disputed and such notice may come from pleadings, the opponent's evidence or opening, or from the general manner in which the case is conducted.


case_text: In its written submissions Cadbury cited numerous decisions which were said to involve facts or issues similar to the present case and statements of judges about the facts in those cases. For its part, Darrell Lea sought to draw different messages from those, and other, cases and statements. Without wishing to disparage the industry of counsel, I did not find this exercise particularly helpful. I repeat the statement of Lord Oliver in Reckitt & Colman Ltd v Borden Inc (1990) 17 IPR 1 at 7, quoted in the earlier judgment at [120]. Mutatis mutandis , similar considerations apply to the trade practices claims. As was pointed out in Domain Names and Interlego (see [49]-[50] above), these are jury questions. A jury would not be asked to consider what was said by judges in other cases because a jury has to apply legal principle to the facts before it, and no other facts.


case_text: Likewise in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 Mahoney JA said: ...failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. This was pointed out by Lord Herschell ([in Browne v Dunn] at 71). The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter.


case_title: Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1


case_title: Taco Co (Aust) Inc v Taco Bell Pty Ltd (1982) 42 ALR 177


case_title: The Queen v Turner [1975] QB 834


case_title: Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111


case_outcome: followed

case_title: Bodney v Bropho [2004] FCAFC 226

case_text: Bodney v Bropho [2004] FCAFC 226 , I said that determination of the question of the "proper" claimant group is not properly a subject for determination on a strike out application. I said at [7] and [8]: 7 Whether the Ballaruk and Didjarruk people was a wider group of people than Mr Bodney's immediate family was a matter of serious dispute before the primary judge. William Warrell and Margaret Gentle had sworn affidavits consistent with the view that the Ballaruk and Didjarruk people was a wider group than Mr Bodney's immediate family. However, Mr Warrell and Ms Gentle were not cross-examined, even though it is plain that Mr Bodney disputed the accuracy and indeed the truthfulness of the claims that they made in their respective affidavits. 8 Resolution of that factual question is, in my respectful view, not properly the subject for determination on a strike-out application. The finding of lack of authorisation (or, more precisely, the primary judge's finding that Mr Bodney had failed to establish authorisation in either of the ways contemplated by s 251B of the Act), was dependent on the factual finding by the primary judge on that question. In my judgment, it is not appropriate at this time and on this application to determine those issues. Three of the persons who have executed affidavits for Mr Delaney, namely, Neville Isaacs Jnr, Ervyn Isaacs, and Stella Isaacs, are respondents to the principal proceedings, and therefore are entitled to be heard on those issues in the proceeding. It is a curious feature of the present application that it is contended that there are alternative bases for the authorisation to change the composition of the applicant. The primary submission is that Ms Connie Isaacs, on 9 February, made the decision, and she, as Elder was entitled to make that decision for the purposes of s 251B(a) of the Act. The traditional laws and customs of the native title claim group, it was said, gave the authority to make that decision to Ms Isaacs as Elder. That was the basis on which Ms Isaacs made the original application. In the present case, all but one of the adult members of the native title claim group (as expressed in the original application) have acquiesced and acceded to this particular exercise of authority by Ms Isaacs, after there was consultation among members of the claim group as to what was proposed. The remaining adult member, Jodie Briggs, has previously acknowledged the authority of Ms Isaacs as Elder. The curious feature is that it was submitted that if the Court was not satisfied that the decision of Ms Connie Isaacs as Elder was the process of decision making under the traditional laws and customs of the persons in the Turrbal native title claim group, there had nonetheless been a decision made to authorise Ms Isaacs and Ms Barambah pursuant to a process of decision making agreed to and adopted by the persons in the native title claim group, to be inferred from the conduct of the members of the native title claim group between 9 February and 15 June 2007, when the senior members of the Turrbal group met for the purpose of making a decision. That decision was subsequently ratified by as many adult members of the Turrbal claim group as practicable (indeed, by all but one), and the resolution initially passed on 9 February 2007, having subsequently been ratified by all but one adult members of the native title claim group, constituted a sufficient authorisation within the requirements of the Act. There is simply no evidence that that method of decision making was the process of decision making required to be complied with in relation to authorising things of that kind under the traditional laws and customs of the persons in the native title claim group. The original application was not authorised by that process and, it seems to me, the alternative form of authorisation contended for factually is at odds with the primary contention of the applicant concerning authorisation, namely, that Ms Connie Isaacs as Elder had the authority of the native title claim group to make the original application, because that was the decision making process mandated by the traditional laws and customs of the native title claim group. If Connie Isaacs had authority on that basis to make the original application, she similarly had authority on the same basis to make the decision to change the constitution of the applicant from Ms Connie Isaacs to Ms Connie Isaacs and Maroochy Barambah. Both Helen Bowskill, counsel for the State of Queensland, and Mr Peter Flanagan SC for the Commonwealth submitted that s 66B assumes that the current applicant (who is sought to be replaced by the current applicant and her daughter) had authority to bring the claim at the time the claim was made: s 66B(1)(a)(i).


case_outcome: considered

case_text: J then agreed with the observation of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] where Wilcox J said: Section 84C(2) of the new Act says that, upon an application being made under s 84C(1), the "Court must, before any further proceedings take place in relation to the main application, consider the application under subsection (1)". It may be, as submitted by Mr Wright on behalf of the State, that the requirement to "consider" the application does not include a requirement to determine the application. It may be open to the Court, having considered the merits of an application, to decide to defer a ruling on it until the trial of the principal application. Whether or not that is so, it is clearly the policy of the Act that the Court should give immediate attention to a strike out motion. The reason, no doubt, is that it is undesirable to allow parties to be put to trouble and expense in relation to an application that fails to comply with the fundamental requirements stated in ss 61, 61A and 62.


case_text: J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 refers to the distinction between people who claim to hold common or group rights and interests, and those who actually hold those common or group rights and interests. Lindgren J said at [1189] [1193]: 1189 [That result] is an odd use of language. It is a natural use of language to designate the group of persons on whose behalf a claimant application is made, as 'a claim group', whether or not the application proves to be successful, and those persons, 'including the applicants', as 'claimants'. Yet the expression 'native title claim group' is defined in the NTA as being, relevantly, all the actual holders, according to their traditional laws and customs, of the particular native title claimed: NTA ss 253, 61(1). It follows that there cannot be an authorisation within s 61(1) unless there are actual holders of the particular native title claimed. 1190 Logically, the authorisation issue can be finally determined only after I determine whether there are actual holders of the particular native title claimed, and if so, who they are. Since I decide below that there are no holders of the particular native title claimed, the making of the present application could not have been authorised by all of those persons. 1191 Authorisation was addressed extensively in submissions. I will address the issue independently of my conclusion that there are no actual holders of the particular native title claimed. I will address it as if I were dealing with a strike out application under s 84C. 1192 How does s 84C, which assumes that it may be possible for an application to be struck out prior to the final determination of an application, accommodate the fact that the native title claim group is defined to mean the actual holders of the particular native title claimed? In my opinion, the answer is that the striking out remedy is available once it clearly appears that, if the application were to succeed according to its own terms, the applicants would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed, that is to say, by all the members of the 'claim group' (all the 'claimants'). 1193 I will take this approach also to the challenges to authorisation of all Claims before the Court, that is to say, I will assume that the claimants identified in the Form 1 are actual holders of the particular native title claimed in that Form. The opposition by Mr Delaney to the granting of the relief sought by the notice of motion depends on establishing that the claimant group, as contended for by the applicant Connie Isaacs, is wrong, and that Connie Isaacs does not, and never had, the authorisation of the correct claimant group. The observations of Lindgren J in [1192] above indicate that a strike out application would depend on whether it was established that the applicant was not authorised by all the members of the claim group, ie, all the "claimants". The question of whether all the "claimants" constitute the persons who actually hold the common or group rights and interests confirming the particular native title claimed, or whether the persons who actually hold those rights and interests is a wider group (as Mr Delaney contends), being a factual dispute, is not properly the subject of determination on a strike out application.


case_title: Williams v Grant [2004] FCAFC 178

case_text: J (with whom North J at [1] and Dowsett J at [10] agreed) in Williams v Grant [2004] FCAFC 178 said, at [53]: 53. Section 66B assumes that the current applicant, who is sought to be replaced, had authority to bring the claim at the time the claim was made: s 66B(1)(a)(i). The hearing of a s 66B motion is not the proper occasion to explore the broader issue as to whether or not a native title determination application was properly authorised in the first place for the purposes of s 61 and s 251B of the Act. Such an issue can be explored either in the course of a strike-out application under s 84C of the Act, or at the trial of the application. Lander J discussed the operation of s 84C and the question of proper authorisation at [54] to [59] inclusive: 54 ... in this case, where the appellant contended that the first respondent was never authorised to bring the native title application, the appellant has adopted the correct procedure, which is to proceed under s 84C. 55 Section 84C(2) requires the Court to consider the application to strike out 'before any further proceedings take place in relation to the main application'. 56 That subsection recognises that if an application under s 84C is successful the application for native title will be struck out. Because of the possible consequences of the application, it is in all parties' interests that the application be heard before any other steps are taken in relation to the main application. The subsection requires the Court to 'consider the application made under subsection (1)'. The subsection does not require the Court to determine the application before any further steps are taken. The use of the word 'consider' without an obligation on the Court to also 'determine' the application is deliberate. 57 In some cases it will be appropriate to determine the application at the same time as it is considered. Where the application to strike out is obviously without merit then it may be dismissed immediately. Where the application is clearly a case that calls for relief under the section, recognising that relief will be provided sparingly as I have described it, then an order will be made dismissing the main application. In many cases, an applicant faced with an application under s 84C will apply to amend the application to cure an identified deficiency. For example, where an application is based upon an applicant's failure to comply with s 62 in supplying the details under that section, an applicant might respond by amending the application to make it comply. In those cases, the Court will not be called upon to determine the s 84C application. 58 In some cases it may be difficult to decide whether the application should succeed. For example, it may be difficult to decide, on the papers, whether the applicant has been authorised by the native title claim group. 59 In that case it may be appropriate to hear and determine the application under s 84C at the same time as the main application. ... If Ms Isaacs had authority as Elder to make the original application, as I hold on the authority of Williams v Grant s 66B assumes she had, she therefore had authority as Elder to decide on an altered composition of the applicant. For the above reasons, I am satisfied that it is proper to grant the relief sought by the notice of motion. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 11 March 2008 Counsel for the Applicant: Ms T Jowett Solicitor for the Applicant: Blackshield & Co Counsel for the First Respondent: Ms H Bowskill Solicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr P Flanagan SC Solicitor for the Second Respondent: Australian Government Solicitor Solicitor for the Fourth Respondent: K Brown Solicitor for the Sixteenth Respondent Gore & Associates Date of Hearing: 25 June 2007 Date of Judgment: 11 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/316.html


case_outcome: referred to

case_text: Ms Kang considered that her employment had been terminated for reasons proscribed by the Workplace Relations Act 1996 (Cth) ("the Act "). Specifically, she alleged that she had been dismissed because of a temporary absence from work due to illness and because she had filed complaints against her employer alleging breaches of applicable laws. She commenced a proceeding in the Federal Magistrates Court in which she sought re-instatement to her former position, compensation and costs. At trial, she abandoned her claim for re-instatement and advised the Court that she sought compensation and an apology. The proceeding was dismissed by the Federal Magistrate: see Kang v Attorney-General's Department [2008] FMCA 638. 3 The respondent (who was, by order of this Court, identified as the Commonwealth of Australia) opposed the application and sought its costs. The Federal Magistrate did not rule on the costs application. 4 Ms Kang lodged an appeal in this Court. The Commonwealth cross-appealed on the costs issue. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act ") that the appeal be heard and determined by a single judge.


case_text: The Federal Magistrate accepted that, once Ms Kang had made the allegation that Mr Kennedy had terminated her employment for one or more of the reasons identified in s 659(2)(a) and (e), the onus fell on the Commonwealth, under s 664 , to prove that the termination did not occur for a proscribed reason: see Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; (2005) 144 FCR 347 at 350 [15] . 25 The Federal Magistrate did not consider that Ms Kang had been dismissed because of absences due to illness. There was no reason why Mr Kennedy would have been aware of any of Ms Kang's absences because of illness. It had not been put to him that he was aware of any such absences or that he had acted because of them. His Honour rejected the claim, insofar as it was based on s 659(2)(e) on the basis that it was well settled that the paragraph did not apply where all that the employee had done was to make a complaint directly to his or her employer: see Zhang at [19]-[30]; Claveria v Pilkington Australia Ltd (2007) 167 IR 144 at [110]-[112]. All of Ms Kang's complaints about her treatment were directed to other officers within the Attorney-General's Department. 38 In dealing with s 664 the Federal Magistrate directed himself consistently with the decision of a Full Court of this Court in Zhang at 350 [15], and the decision of O'Loughlin J in Robertson v South (2000) 140 IR 169 at 173 [16]. No error in his Honour's application of s 664 has been demonstrated. 39 It is well established that s 659(2)(e) "is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone": He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 at 280 [44] (per Gray and Mansfield JJ); Zhang at 350-352 [19]-[33].


case_text: The Federal Magistrate did not consider that Ms Kang had been dismissed because of absences due to illness. There was no reason why Mr Kennedy would have been aware of any of Ms Kang's absences because of illness. It had not been put to him that he was aware of any such absences or that he had acted because of them. His Honour rejected the claim, insofar as it was based on s 659(2)(e) on the basis that it was well settled that the paragraph did not apply where all that the employee had done was to make a complaint directly to his or her employer: see Zhang at [19]-[30]; Claveria v Pilkington Australia Ltd (2007) 167 IR 144 at [110]-[112]. All of Ms Kang's complaints about her treatment were directed to other officers within the Attorney-General's Department.


case_title: Robertson v South (2000) 140 IR 169

case_text: In dealing with s 664 the Federal Magistrate directed himself consistently with the decision of a Full Court of this Court in Zhang at 350 [15], and the decision of O'Loughlin J in Robertson v South (2000) 140 IR 169 at 173 [16]. No error in his Honour's application of s 664 has been demonstrated.


case_text: It is well established that s 659(2)(e) "is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone": He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 at 280 [44] (per Gray and Mansfield JJ); Zhang at 350-352 [19]-[33].


case_text: Section 666 of the Workplace Relations Act 1996 (Cth) provides that a party must not be ordered to pay the costs of any other party in a proceeding alleging a contravention of s 659 of the Act unless the Court is satisfied that the applicant instituted the proceedings without (inter alia) reasonable cause. The respondent contended that the proceeding in the Federal Magistrates Court had been instituted without reasonable cause and that it had no real prospects of success or was doomed to failure: see Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2007) 237 ALR 672 at 685. This was because Ms Kang did not produce any evidence capable of supporting her application and because the case she presented to the Court amounted to a mere allegation which could be rebutted by a simple denial by the respondent. 62 Ms Kang's application to the Federal Magistrates Court, insofar as it alleged a contravention of s 659(2)(e) , was bound to fail. Her own evidence established that she had not made any complaint to any external authority. In the absence of such a complaint, for reasons already given, she could not succeed. 63 It cannot, however, in my opinion, be said that her complaint alleging a contravention of s 659(2)(a) had no prospects of success or was doomed to fail. Ms Kang gave undisputed evidence about a series of absences from work which commenced in mid February 2007. She was absent when the decision was made to terminate her employment. She had provided the Attorney-General's Department with medical certificates to explain her absences. This evidence alone was, of course, not sufficient to make good a claim of contravention of s 659(2)(a). It was, however, sufficient, having regard to the provisions of s 664(b) , to require more than a mere denial on the part of the respondent. The respondent did not, apparently, consider that a mere denial would suffice. It accepted that it was necessary to call Mr Kennedy to give evidence about when he made his decision, why he made it and his knowledge (or lack of it) of the medical certificates and Ms Kang's absences prior to his making the decision.


case_text: This is an appeal from a judgment of Federal Magistrate Scarlett given on 21 March 2007: SZJUK v Minister for Immigration and Citizenship [2007] FMCA 439. His Honour dismissed, with costs, an application to review a decision of the Refugee Review Tribunal ("the Tribunal") signed on 25 October 2006 and given on 14 November 2006. 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 20 October 2004. On 3 December 2004 he applied for a protection (class XA) visa. On 7 March 2005 a delegate of the respondent Minister refused that application. The appellant then sought review of that decision from the Tribunal. The Tribunal affirmed the delegate's decision on 4 August 2005. The appellant then sought judicial review. 3 On 5 June 2006 Federal Magistrate Barnes made orders by consent quashing the Tribunal's decision and remitting the application for reconsideration. The appellant was then invited to attend a second Tribunal hearing, which he did. Ultimately, the Tribunal rejected his application. In doing so, it found that his evidence was not credible, largely because the claims that he advanced before the first Tribunal differed in certain respects from his claims before the second Tribunal. 4 The appellant's claims can be briefly stated. He says that he is a member of Falun Gong, and that by reason of that fact, he faces persecution if required to return to China. 5 In his application for a protection visa the appellant said that he was born in Fujian, China, in 1972 and was married in 1996. His wife and daughter continue to reside in China. He said that he was a sales/department manager prior to coming to Australia, and had held that position from March 2003 to October 2004. He claimed that he had been unemployed from February 1996 until February 2003 and that prior to that he had been a construction worker and a farmer. He claimed that he left China legally using a passport issued in his name in Fujian in November 2002 which would expire in November 2007. He claimed that he had had difficulties, which he detailed as "bribery", obtaining his passport. He claimed that his passport was not valid for return to China because "it must have been blacklisted".


case_outcome: distinguished

case_text: The Tribunal then turned its attention to the question of compassionate and compelling circumstances, for the purpose of determining whether reg 1.15A(2A) of the Migration Regulations was applicable. At [74], it referred to Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 (2002) 116 FCR 557. In that case, the Court was dealing with an earlier version of item 820.211 in Sch 2 to the Migration Regulations , in which there was a requirement to satisfy several criteria found in Sch 3, 'unless the Minister is satisfied that there are compelling reasons for not applying those criteria.' Relying on an explanatory memorandum issued by the Minister at the time when this provision had been inserted into the Migration Regulations , which described the provision as a 'waiver provision', Wilcox J held at [33] that it was clear that the 'compelling circumstances' criterion was intended to be satisfied at the time of application for a visa, not at the time of decision, because item 820.211 in its entirety was required to be satisfied at the time of application. Discussing the effect of this case at [76] of its reasons, the Tribunal said: 'The Tribunal notes that the Court in Boakye-Danquah was not concerned about whether compassionate and compelling circumstances applied to justify a waiver of the 12 month cohabitation requirement. However, the Court clearly stated that the relevant criterion in that case was concerned with "the circumstances in which the application is made". The 12 month cohabitation requirement is also clearly concerned with the circumstances in which the application is made. This requirement may only be waived if there are circumstances sufficiently compassionate and compelling which would justify the parties having lodged the visa application before they had lived together in a spousal relationship for a sufficient period to satisfy the definition of spouse under regulation 1.15A. If the Tribunal was to take into account compassionate and compelling circumstances which apply only at the time of the decision it would be, in effect, making a determination in relation a [ sic ] time of application requirement by reference to facts which did not yet exist at the time of application. Such a determination would entirely undermine the two-stage assessment process which underpins the regulations. That is, an assessment of relevant factors which exist at the time of application and a later assessment of factors which exist at the time of decision.' 46 At [77], the Tribunal purported to apply Boakye-Danquah in assessing whether there were compelling and compassionate circumstances justifying what it called 'the waiver of the 12 month cohabitation requirement at the time of application.' It expressed a finding that the only circumstances which could properly be taken into account 'in determining whether to exercise the waiver of the 12 month cohabitation requirement are those circumstances which applied at the time of application.' After referring to other authority, the Tribunal then said at [81]: 'Policy provides that, in assessing whether there are compelling and compassionate reasons, officers are to take into account the circumstances which the Minister considers to be compelling and compassionate which includes, but is not limited to, applicants who have a dependent child of the relationship. The parties should be given the opportunity to present information as to why they consider there are compelling and compassionate reasons to waive the one year pre-existing cohabitation requirement. However, it is the policy intention that an assessment that the parties' relationship is genuine would not, in the absence of a dependent child of the relationship, be sufficiently compelling to justify not applying regulation 1.15A(2)(d) requirements.' 47 At [82], the Tribunal found that there were no dependent children of the relationship, and that there was no evidence that the parties were affected by extreme hardship at the time of application or that they would suffer irreparable prejudice if the 12-month cohabitation period were not waived. It referred to the relationship between Mr Petrou and the two children of his former marriage and to the fact that he had lived away from them for some time. It took the view that Mr Petrou would be able to prepare his children psychologically for his departure from Australia to be with Ms Antipova. The Tribunal found that it was not satisfied that a close relationship existed between Mr Petrou and his children at the time of application and was not satisfied that the relationship amounted to compassionate and compelling circumstances at that time. It was also not satisfied that the current needs of Mr Petrou's children were sufficiently compelling to justify a waiver of the 12-month cohabitation requirement, even if it could properly take those circumstances into account. 48 Three documents filed on behalf of Ms Antipova, and oral submissions of her counsel at the hearing of the proceeding, disclosed a great variety of approaches to the case put on her behalf. Some of the points raised can be dealt with very briefly, whereas others require a more detailed examination. The three documents are the amended application, filed on 8 June 2004, contentions of fact and law, also filed on 8 June 2004, and contentions in response to the respondent's supplementary contentions, filed on 2 May 2005. 103 The Tribunal construed this provision as a 'waiver' provision, and held that it was required to take into account only those circumstances existing at the date of the application for a visa. In doing so, the Tribunal said that it was following Boakye-Danquah . That was a case concerned with criteria for a particular type of visa, found in a schedule to the Migration Regulations , in which the reference to 'compelling reasons' appeared in the very criterion required to be satisfied at the time of application for the visa. That provision referred to compelling reasons for not applying certain otherwise applicable criteria. It is not surprising that Wilcox J in that case construed the relevant provision as requiring the compelling reasons to exist at the time of application for the visa. 104 Regulation 1.15A(2A) of the Migration Regulations is a very different provision. It is found in a separate regulation, providing a definition of the word 'spouse', for a variety of purposes, wherever that word is found in the Migration Regulations . It does not call upon a decision-maker to determine 'whether to exercise the waiver of the 12 month cohabitation requirement', as the Tribunal characterised it at [77] of its reasons. Rather, reg 1.15A(2A) provides that reg 1.15A(2)(d) does not apply if a specified condition is met. That condition is not that the applicant can establish compelling and compassionate reasons for not applying the criteria referred to in reg 1.15A(2)(d), but that the applicant can establish 'compelling and compassionate circumstances for the grant of the visa.' In other words, the Tribunal is not required to determine whether compelling and compassionate circumstances exist for the waiver or non-application of the 12-month requirement, but whether such circumstances exist for the granting of the visa sought. The focus is not on the criteria to be ousted from consideration, but on the end result. The wording of reg 1.15A(2A) suggests strongly that, at whatever stage of whatever decision-making process the question of special circumstances arises, it is to be determined by reference to whatever circumstances exist at the date of decision. It would be a strange result if the circumstances to be considered differed according to whether the application of the definition of 'spouse' was required to be applied at the time of application of the visa, or at the time of decision, or at some other stage, so that different views might be taken as to whether compelling and compassionate circumstances for the grant of the visa existed at different times. The wording of the provision suggests strongly that this is not the intention. 105 Applying this view does nothing to undermine the two-stage assessment process of determining entitlement to the type of visa Ms Antipova sought, as the Tribunal suggested at [76] of its reasons. Even assuming the definition in reg 1.15A of the Migration Regulations to be confined in its application to that type of visa (and subreg (2)(d) in its terms applies to a range of types of visas, including any permanent visa), the two-stage process remains intact. In determining whether the applicant for a visa was the spouse of a nominating person at the date of application for the visa, the decision-maker is required to determine whether, throughout a 12-month period prior to that date, the two persons met the three requirements of reg 1.15A(2)(d), namely mutual commitment, genuine and continuing relationship, and cohabitation. If any of these three requirements should be absent, the decision-maker is then required to consider whether the applicant has established compelling and compassionate reasons for the grant of the visa. If so, reg 1.15A(2)(d) no longer has to be satisfied at the date of application for the visa; it no longer applies. Once understood in this sense, reg 1.15A(2A) can be seen to be compatible with the two-stage process of assessment. On this analysis, there is nothing strange about making a determination about the application of a criterion to be satisfied at the time of application for a visa by reference to facts not in existence at that time, as the Tribunal thought. 107 At [24], North J expressed the view that it was not to be expected that a decision-maker would be required to ignore the current state of affairs, unless the legislation expressly required such an exercise to be undertaken. At [25], his Honour referred to the fact that reg 3A(2) was an ameliorating provision, which suggested that it should be given an expansive, rather than a restrictive, meaning. At [26], his Honour regarded any uncertainty arising from applying the assessment on the facts as they exist at the time of the decision, rather than at the time of the application, as insufficient to outweigh the intended ameliorating purpose of the regulation. His Honour did not refer to Boakye-Danquah . In many respects, the provision with which North J was dealing in Neofotistou was more similar to that with which Wilcox J was dealing in Boakye-Danquah than either is to reg 1.15A(2A) of the Migration Regulations. Despite the fact that North J appears to have been unaware of Boakye-Danquah , I regard Neofotistou as correct, and as supporting the view I take of reg 1.15A(2A). As I have said, Boakye-Danquah is distinguishable, because it dealt with a provision very different from reg 1.15A(2A). 108 The Tribunal appears to have been led into error by its misunderstanding of the principle for which Boakye-Danquah stood as authority, and by its incorrect characterisation of reg 1.15A(2A) of the Migration Regulations, at [76] of the Tribunal's reasons, as permitting waiver of the criteria in reg 1.15A(2)(d) 'if there are circumstances sufficiently compassionate and compelling which would justify the parties having lodged the visa application before they had lived together in a spousal relationship for a sufficient period to satisfy the definition of spouse under regulation 1.15A.' As I have said in [104], reg 1.15A(2A) did not focus on the circumstances attending the making of the application for a visa, but on the circumstances justifying the granting of the visa. Those circumstances are the ones the Tribunal was required to take into account in determining whether the criteria in reg 1.15A(2)(d) was applicable. 109 Such an error is capable of amounting to a jurisdictional error if it affected the exercise of the Tribunal's statutory function. In the present case, the issue of compelling and compassionate circumstances turned on Mr Petrou's re-established relationship with his children from a former union, and on Ms Antipova's emerging relationship with those children. The Tribunal was prepared to take into account the needs of those children in determining whether compelling and compassionate circumstances existed. Having held that it could not take into account the circumstances that existed at the date of decision, the Tribunal nevertheless expressed the view at [82] of its reasons that, even if it could do so, it did not regard the current needs of the children as 'sufficiently compelling to justify a waiver of the 12 month cohabitation requirement'. Despite the incorrect characterisation of the effect of reg 1.15A(2A), it is fair to take this finding to be a finding that there were no compelling and compassionate circumstances, for the purposes of the application of that provision, even if current circumstances were to be considered. The assessment of the circumstances against the standard of 'compelling and compassionate' was a matter for the Tribunal. It does not appear that the Tribunal misunderstood or misapplied the required standard. The result, therefore, is the same as if the Tribunal had not held erroneously that it could not take circumstances at the time of the decision into account. In effect, it did so. Its error did not amount to a jurisdictional error, because it did carry out the task required of it by the legislation. 110 For this reason, the Tribunal's decision cannot be set aside on the basis of its error in construing reg 1.15A(2A) of the Migration Regulations.


case_text: In determining whether Ms Antipova and Mr Petrou had been in a de facto relationship for 12 months or more prior to the visa application, the Tribunal was bound to have regard to all of the matters referred to in reg 1.15A(3) of the Migration Regulations . That subregulation so provides and, as the Tribunal pointed out at [48] of its reasons, the mandatory nature of the provision was emphasised in Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788 at [10] . In conformity with its obligation, the Tribunal discussed in its reasons for decision each of those matters, to the extent to which there was evidence before the Tribunal relating to them. It did so under headings reflecting the requirements of pars (a), (b), (c) and (d) respectively of reg 1.15A(3). This arrangement of the Tribunal's reasons for decision makes it difficult for Ms Antipova to sustain the argument that the Tribunal failed to consider the mandatory considerations. 61 In its consideration of the financial aspects of the relationship, required by reg 1.15A(3)(a) of the Migration Regulations , the Tribunal first found that there was no evidence that, in the 12-month period it was considering, the parties combined their financial affairs or shared assets or liabilities. It acknowledged that Ms Antipova had given a reason for the lack of a joint bank account, namely that she and Mr Petrou had little money and there was no need. The Tribunal pointed out that there was no documentary evidence of shared household or daily living expenses in the relevant 12-month period, but appeared to accept that it would have been impractical to have had such evidence, because Mr Petrou was the sole lessee of the six-bedroom house in California in which Ms Antipova claimed to have lived with him and others. The Tribunal clearly did not focus solely on whether Ms Antipova and Mr Petrou had a joint bank account, as the submissions on behalf of Ms Antipova suggested. Nor did it ignore evidence of the joint burden of debt for legal expenses, loans and university fees. To the extent that such a joint burden might have existed, it plainly did not exist during the 12 months preceding the application for a visa. Indeed, as late as 1 September 2003, Ms Antipova's migration agent (who was also, apparently, a legal practitioner) submitted in writing to the Tribunal the statement that Ms Antipova and Mr Petrou 'do not have joint financial commitments because of their parlous financial position.' The Tribunal could hardly have made any finding other than the one it made on this aspect of the case. In weighing the credibility of Ms Antipova's case, the Tribunal was certainly entitled to use material that Ms Antipova had supplied to it, concerning the travel undertaken by her and Mr Petrou, when testing their assertion that, because they had very little money, they did not open a joint bank account and Ms Antipova did not apply for a divorce from her former husband. The material was relevant to this issue, and there was no element of conjecture involved in the Tribunal's reliance on it. 62 In considering the social aspects of the relationship during the 12-month period, as required by reg 1.15A(3)(c) of the Migration Regulations , the Tribunal dealt expressly with the material supplied by Ms Antipova from friends and family. As I have already pointed out, it gave little weight to the statements of Ms Downie, Ms Shpits and Ms Karagoz. It did not reject the statements as evidence that family and friends considered Ms Antipova and Mr Petrou to be a couple, and thereby used the statements for the purpose for which they were required under the regulation, and for the purpose for which they had been supplied to it. The Tribunal did point out, however, that the statements of Mr Petrou's parents did not bear upon whether Ms Antipova and Mr Petrou were living together at the relevant time. Since this was the crucial issue, the Tribunal could not be criticised for making this observation, although it did so under the heading dealing with the social aspects of the relationship, rather than under the earlier heading, dealing with the nature of the household, including the living arrangements. The Tribunal did not fail to consider the evidence of travel itineraries, air tickets and passport copies, as Ms Antipova contended. It detailed every document in its reasons for decision. The material indicated that the parties travelled together in March 2002. Although evidence of later events can sometimes cast light on the nature of a relationship at an earlier time, it is hard to see, and counsel for Ms Antipova never explained, how the evidence of joint travel in March 2002 could bear upon the nature of the relationship between Ms Antipova and Mr Petrou in May and June 2001. The Tribunal was not bound to look at this material in relation to the issue of the social aspects of the relationship at the relevant time.


case_text: The contention that the Tribunal failed to act in accordance with substantial justice and the merits of the case, as it was required to do by s 353(2)(b) of the Migration Act , also appears to be an attempt to reargue the merits, and therefore impermissible. In Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [46] [52] per Gleeson CJ and McHugh J (Hayne J concurring at [158]), [69] [77] per Gaudron and Kirby JJ, [106] [109] per Gummow J, and [175] [179] per Callinan J, the High Court held that s 420 of the Migration Act was insufficiently specific to constitute a ground for review of a decision under the limited jurisdiction then given to this Court by s 476 of the Migration Act , which has since been repealed. Section 420 makes provisions with respect to the Refugee Review Tribunal in terms identical to those made by s 353 with respect to the Tribunal. For reasons similar to those given in Eshetu , s 353 is unlikely to be the source of an obligation, failure to comply with which could be said to constitute jurisdictional error. 67 A consideration of whether the Tribunal made a jurisdictional error by misleading Ms Antipova about what was in issue requires an examination of further factual matters. On 6 August 2002, Ms Antipova and Mr Petrou were interviewed separately by an officer of the Department of Immigration and Multicultural Affairs (subsequently the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Department'). The notes of the interview record that Ms Antipova was asked when and where she moved in with Mr Petrou. Her answer was 18 May 2001, and she gave the address of the premises at which Mr Petrou lived in California. The officer asked if she had any other documents that would support this claim, and Ms Antipova said that she did not. By letter dated 16 August 2002, the officer referred to a request on 6 August 2002 'to provide further evidence of cohabitation within 28 days' and requested certain specified documents. With a letter dated 6 September 2002, Ms Antipova's migration agent provided the statutory declarations of Mr Petrou's parents, the statement of Ms Karagoz and a statement of Mr Petrou. With a letter dated 15 October 2002, the migration agent provided the letter of Ms Downie dated 15 August 2002. 68 The decision of the Minister's delegate to refuse to grant Ms Antipova a visa was accompanied by written reasons, dated 3 January 2003. According to those reasons, the delegate found 'conflicting information about the extent of commitment of this relationship since May 2001'. The delegate found that there was 'inadequate evidence...to support claims of a de facto marital relationship to have been in existence for at least 12 months prior to the date of application' for the visa [underlining in original]. It was for this reason that the delegate decided that Ms Antipova was not entitled to the visa.


case_text: Denial of procedural fairness, potentially affecting the outcome of a proceeding in the Tribunal, is a jurisdictional error. Ordinarily, it justifies the Court quashing the decision of the Tribunal. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (2003) 211 CLR 476. The question is whether any provision of the Migration Act prevents Ms Antipova from relying on this jurisdictional error in the present case. In particular, the question is whether s 357A(1) of the Migration Act has that effect.


case_title: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (2003) 211 CLR 476


case_text: There are two possible answers to this question. The first is that s 360(1) of the Migration Act requires the Tribunal to invite the applicant 'to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.' If the Tribunal has conducted what purports to be a hearing, but has not in truth allowed an applicant to give evidence and present arguments relating to those issues, it has not complied with this statutory obligation. The Tribunal has failed to comply with an essential precondition to making a decision on the applicant's application to review the decision of the Minister's delegate, and has therefore failed to perform the duty, conferred on it by s 348 of the Migration Act , to review that decision. Its decision is invalid and must be set aside. This is the reasoning followed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] [41], in relation to s 425(1) of the Migration Act , which imposes on the Refugee Review Tribunal an obligation in terms identical with the obligation imposed on the Tribunal by s 360(1). At [33], the Full Court approved the statement of Goldberg J in Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 (2000) 183 ALR 188 at [31] that: 'The invitation must not be a hollow shell or an empty gesture.' 84 In SCAR at [38], the Full Court recognised that compliance with s 425 is a 'precondition to the valid exercise of the Tribunal's jurisdiction', and that failure to comply involves a jurisdictional error. At [41], the Full Court found that the Refugee Review Tribunal in that case had not extended 'a meaningful invitation'. 85 In the present case, because it interrupted her and imposed an arbitrary time limit on her, the Tribunal did not permit Ms Antipova to give evidence and present arguments as she wished to do. Although there was a semblance of a hearing, and the Tribunal invited Ms Antipova to it in terms mandated by s 360(1) of the Migration Act , the invitation was not a real and meaningful one, because what she was invited to do was denied to her. The Tribunal failed to observe a precondition of the exercise of the jurisdiction conferred on it. Its decision was made without an invitation to attend a hearing of the kind required, because such a hearing has not yet been conducted. 86 Counsel for the Minister submitted that SCAR has been the subject of judicial criticism, and even that it has been not followed. Reference was made to WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 (2004) 204 ALR 624, in which French J distinguished SCAR on the facts at [46]. At [57] [59], his Honour discussed the question whether s 422B of the Migration Act operated to preclude the application of the principles of procedural fairness in the context of the failure of the Refugee Review Tribunal to ask any questions at the hearing as to a particular issue on which it later found adversely to the person seeking a protection visa. In the course of that discussion, his Honour examined whether there had been a failure to comply with s 425 of the Migration Act . In the alternative, his Honour examined the issue on the assumption that s 425 had no application, holding that the denial of procedural fairness in that case amounted to jurisdictional error, notwithstanding s 422B. Nothing that his Honour said in that passage amounted to a criticism of SCAR , or a refusal to follow it. Indeed, at [58], his Honour affirmed the central propositions for which SCAR stands, saying: 'A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review.' 87 In M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 (2005) 85 ALD 597, Ryan J also dealt with the alleged failure of the Refugee Review Tribunal to raise at the hearing an issue on which it later found against the person applying for a protection visa. At [58], his Honour accepted that compliance with s 425 was held in SCAR to be a precondition to the valid exercise of the Refugee Review Tribunal's jurisdiction, and that failure to comply would therefore be jurisdictional error. At [59], his Honour quoted from the joint judgment of Tamberlin and Katz JJ in Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 (1999) 92 FCR 315 at [29] , where their Honours said: 'In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation...Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence".' 90 At [62], Ryan J quoted from NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30] , a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar . The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question. 91 This examination of the authorities demonstrates that, far from having been criticised or not followed, SCAR is very much in the mainstream of authority. The invitation required by s 425 of the Migration Act (and, for identical reasons, that required by s 360), must be real and genuine. As the reasoning of Tamberlin and Katz JJ in Cho at [33] demonstrates, it is legitimate to examine what occurred at the hearing, in order to ascertain whether the invitation extended satisfies that requirement. If what took place under the guise of a hearing was not a genuine opportunity for an applicant for review 'to give evidence and present arguments relating to the issues arising in relation to a decision under review', then the invitation required by s 425 (or s 360) will not have been extended as required. Of course, it is necessary to bear in mind, as Tamberlin and Katz JJ said in Cho at [29], that it is not legitimate to regard every want of procedural fairness as nullifying the invitation. It is only defects rendering the proceedings ineffective to fulfil the purpose for which the invitation is required that will have this effect. SCAR is therefore binding on me as a single judge. In any event, in my view, it is correctly decided. 93 If SCAR is wrongly decided, and s 360(1) of the Migration Act is not to be given the meaning it bears in my opinion, it is necessary to consider the second answer to the question whether s 357A of the Migration Act ousts the right, which Ms Antipova would have otherwise, to establish that the Tribunal's unfairness to her constitutes jurisdictional error, entitling her to have the Tribunal's decision set aside. Section 357A is a difficult provision to construe. It does not exclude altogether the principles of procedural fairness. There must be some doubt as to whether Parliament could exclude procedural fairness altogether, given that a denial of procedural fairness is a ground for the remedies referred to in s 75(v) of the Constitution . At best, the legislative power extends to regulating procedures, and this is what s 357A attempts to do. It provides that Div 5 of Pt 5 of the Migration Act is taken to be 'an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with'. The provision assumes that there will be aspects of the 'natural justice hearing rule' that are not matters dealt with by any provision of Div 5. As the cases so far have shown, identifying a provision dealing with a particular 'matter', relating to procedural fairness is not always easy. See, for example, the passages in WAJR , to which I have referred in [86]. The present case is relatively easy. No provision of Div 5 deals with the imposition of time limits on the hearings of the Tribunal. Unless it be s 360(1) , no provision deals with the process by which evidence is adduced at a Tribunal hearing. There is certainly no provision dealing with the 'matter' of a Tribunal member interrupting answers to questions. No provision gives the Tribunal member a right to control and censor the evidence given, by refusing to hear what the applicant for review wishes to say.


case_text: There are two possible answers to this question. The first is that s 360(1) of the Migration Act requires the Tribunal to invite the applicant 'to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.' If the Tribunal has conducted what purports to be a hearing, but has not in truth allowed an applicant to give evidence and present arguments relating to those issues, it has not complied with this statutory obligation. The Tribunal has failed to comply with an essential precondition to making a decision on the applicant's application to review the decision of the Minister's delegate, and has therefore failed to perform the duty, conferred on it by s 348 of the Migration Act , to review that decision. Its decision is invalid and must be set aside. This is the reasoning followed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] [41], in relation to s 425(1) of the Migration Act , which imposes on the Refugee Review Tribunal an obligation in terms identical with the obligation imposed on the Tribunal by s 360(1). At [33], the Full Court approved the statement of Goldberg J in Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 (2000) 183 ALR 188 at [31] that: 'The invitation must not be a hollow shell or an empty gesture.' 90 At [62], Ryan J quoted from NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30] , a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar . The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question.


case_text: Counsel for the Minister submitted that SCAR has been the subject of judicial criticism, and even that it has been not followed. Reference was made to WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 (2004) 204 ALR 624, in which French J distinguished SCAR on the facts at [46]. At [57] [59], his Honour discussed the question whether s 422B of the Migration Act operated to preclude the application of the principles of procedural fairness in the context of the failure of the Refugee Review Tribunal to ask any questions at the hearing as to a particular issue on which it later found adversely to the person seeking a protection visa. In the course of that discussion, his Honour examined whether there had been a failure to comply with s 425 of the Migration Act . In the alternative, his Honour examined the issue on the assumption that s 425 had no application, holding that the denial of procedural fairness in that case amounted to jurisdictional error, notwithstanding s 422B. Nothing that his Honour said in that passage amounted to a criticism of SCAR , or a refusal to follow it. Indeed, at [58], his Honour affirmed the central propositions for which SCAR stands, saying: 'A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review.' 93 If SCAR is wrongly decided, and s 360(1) of the Migration Act is not to be given the meaning it bears in my opinion, it is necessary to consider the second answer to the question whether s 357A of the Migration Act ousts the right, which Ms Antipova would have otherwise, to establish that the Tribunal's unfairness to her constitutes jurisdictional error, entitling her to have the Tribunal's decision set aside. Section 357A is a difficult provision to construe. It does not exclude altogether the principles of procedural fairness. There must be some doubt as to whether Parliament could exclude procedural fairness altogether, given that a denial of procedural fairness is a ground for the remedies referred to in s 75(v) of the Constitution . At best, the legislative power extends to regulating procedures, and this is what s 357A attempts to do. It provides that Div 5 of Pt 5 of the Migration Act is taken to be 'an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with'. The provision assumes that there will be aspects of the 'natural justice hearing rule' that are not matters dealt with by any provision of Div 5. As the cases so far have shown, identifying a provision dealing with a particular 'matter', relating to procedural fairness is not always easy. See, for example, the passages in WAJR , to which I have referred in [86]. The present case is relatively easy. No provision of Div 5 deals with the imposition of time limits on the hearings of the Tribunal. Unless it be s 360(1) , no provision deals with the process by which evidence is adduced at a Tribunal hearing. There is certainly no provision dealing with the 'matter' of a Tribunal member interrupting answers to questions. No provision gives the Tribunal member a right to control and censor the evidence given, by refusing to hear what the applicant for review wishes to say.


case_text: In M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 (2005) 85 ALD 597, Ryan J also dealt with the alleged failure of the Refugee Review Tribunal to raise at the hearing an issue on which it later found against the person applying for a protection visa. At [58], his Honour accepted that compliance with s 425 was held in SCAR to be a precondition to the valid exercise of the Refugee Review Tribunal's jurisdiction, and that failure to comply would therefore be jurisdictional error. At [59], his Honour quoted from the joint judgment of Tamberlin and Katz JJ in Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 (1999) 92 FCR 315 at [29] , where their Honours said: 'In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation...Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence".' 89 In M17/2004 , Ryan J did not refer to this additional passage, although what his Honour said at [61] indicates that he was aware of the requirement for the invitation required by s 425 to be a genuine one. What his Honour there said was: 'I accept the submission advanced on behalf of the Minister that s 425 in its present form requires the Tribunal to issue a genuine invitation to the applicant to appear but does not bear on the procedures to be followed at or after the hearing which results from acceptance of that invitation.'


case_text: In M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 (2005) 85 ALD 597, Ryan J also dealt with the alleged failure of the Refugee Review Tribunal to raise at the hearing an issue on which it later found against the person applying for a protection visa. At [58], his Honour accepted that compliance with s 425 was held in SCAR to be a precondition to the valid exercise of the Refugee Review Tribunal's jurisdiction, and that failure to comply would therefore be jurisdictional error. At [59], his Honour quoted from the joint judgment of Tamberlin and Katz JJ in Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 (1999) 92 FCR 315 at [29] , where their Honours said: 'In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation...Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence".' 88 Incidentally, in Cho at [33], Tamberlin and Katz JJ also said: 'We do not consider that there is any special significance in the reference to the word "genuine" which would expand the content of s 425 beyond the ordinary and natural meaning of the language used. According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence. Obviously if there is no real opportunity given then the section has not been complied with. This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence.' 91 This examination of the authorities demonstrates that, far from having been criticised or not followed, SCAR is very much in the mainstream of authority. The invitation required by s 425 of the Migration Act (and, for identical reasons, that required by s 360), must be real and genuine. As the reasoning of Tamberlin and Katz JJ in Cho at [33] demonstrates, it is legitimate to examine what occurred at the hearing, in order to ascertain whether the invitation extended satisfies that requirement. If what took place under the guise of a hearing was not a genuine opportunity for an applicant for review 'to give evidence and present arguments relating to the issues arising in relation to a decision under review', then the invitation required by s 425 (or s 360) will not have been extended as required. Of course, it is necessary to bear in mind, as Tamberlin and Katz JJ said in Cho at [29], that it is not legitimate to regard every want of procedural fairness as nullifying the invitation. It is only defects rendering the proceedings ineffective to fulfil the purpose for which the invitation is required that will have this effect. SCAR is therefore binding on me as a single judge. In any event, in my view, it is correctly decided.


case_text: At [62], Ryan J quoted from NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30] , a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar . The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question.


case_title: Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359


case_text: In Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ [2004] FCAFC 5 (2004) 137 FCR 30, the Full Court dealt with a case in which, on more than one occasion, the Refugee Review Tribunal had interrupted the evidence of an applicant for a protection visa, accused him of misbehaving, asserted that his evidence could not be believed, and treated him rudely and with sarcasm, to the point where he was likely to have become upset, confused and distressed, and to have been deflected from the presentation of his case. By majority, the Full Court upheld a judgment of a federal magistrate, setting aside the Refugee Review Tribunal's decision, by reason of denial of procedural fairness. In Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 (2005) 88 ALD 304, another Full Court dealt with the case of an applicant for a visa similar to that sought by Ms Antipova. In that case, similarly to this one, the Tribunal announced in the course of the hearing that it did not have sufficient time to hear all the evidence the applicant wished to give. The Tribunal also interrupted the applicant and prevented him from giving details in the course of his evidence. The Tribunal made repeated references to the need to hurry, and to the shortage of available time. It did not hear all the witnesses who had attended for the purpose of giving evidence on behalf of the applicant. The Full Court held that the resulting decision of the Tribunal was the result of jurisdictional error, which involved a denial of procedural fairness.


case_title: Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 (2005) 88 ALD 304


case_outcome: discussed

case_text: Since writing these reasons for judgment, I have become aware of the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61. That judgment deals with an appeal by the Minister from a judgment of the Federal Magistrates Court, which quashed a decision of a delegate of the Minister to refuse a Business Skills Migrant visa to the respondent to the appeal, a person who had applied from outside Australia for that visa. The issue was whether the respondent had been denied what the Full Court called 'common law procedural fairness', because the decision-maker did not draw to the respondent's attention the point on which the decision against him turned. If the respondent were entitled to succeed on that issue, there was then an issue as to whether a right to procedural fairness was excluded by s 51A of the Migration Act , a provision in terms similar to both s 357A and s 422B , but relating to decisions by the Minister or delegates of the Minister. At [46] [59], the Full Court held that there had been no denial of procedural fairness, because the relevant point was obvious to the respondent. The Full Court then proceeded, at [60] [70], to make some observations, which are clearly obiter, on the effect of s 51A. Following VXDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1388 (2005) 146 FCR 562, the Full Court expressed the view that s 51A operates to exclude the 'common law natural justice hearing rule' altogether. 97 To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act , it does not bind me to hold that Ms Antipova's only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act . In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act , VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170 at [28] , I remain of the view that the words 'in relation to the matters it deals with', appearing in each of ss 51A , 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words 'in relation to the matters it deals with' would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the 'plain words of necessary intendment' required to exclude the requirements of procedural fairness. See Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise. The present case forms a good example of what would result if the view expressed in Lay Lat were to be followed. Assuming that s 360(1) of the Migration Act does not have the meaning that it has in my view, the Tribunal could reduce the time of a hearing arbitrarily as much as it chose, interrupt and curtail the evidence of the applicant constantly, and deprive the applicant of any opportunity to put his or her case, and the applicant would have no redress. It is impossible to imagine that Parliament intended such a drastic result. 98 To the extent to which the views expressed in VXDC and Lay Lat are said to be based on a reading of the explanatory memorandum and the second reading speech relating to the bill by which ss 51A , 357A and 422B were introduced into the Migration Act , I repeat the view I expressed in Moradian at [35]. Those documents do not contain statements specific enough to resolve any ambiguity in those provisions, or to disclose a purpose specific enough to warrant a construction of the provisions that would regard them as excluding the entirety of the principle of procedural fairness described as the 'natural justice hearing rule'. 99 For these reasons, if it is necessary to ask the question whether Ms Antipova is entitled to succeed on the basis that the Tribunal denied her procedural fairness, by the manner in which it conducted her hearing, I do not regard VXDC and Lay Lat as requiring me to take a view different from that I have expressed above.


case_text: To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act , it does not bind me to hold that Ms Antipova's only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act . In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act , VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170 at [28] , I remain of the view that the words 'in relation to the matters it deals with', appearing in each of ss 51A , 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words 'in relation to the matters it deals with' would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the 'plain words of necessary intendment' required to exclude the requirements of procedural fairness. See Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise. The present case forms a good example of what would result if the view expressed in Lay Lat were to be followed. Assuming that s 360(1) of the Migration Act does not have the meaning that it has in my view, the Tribunal could reduce the time of a hearing arbitrarily as much as it chose, interrupt and curtail the evidence of the applicant constantly, and deprive the applicant of any opportunity to put his or her case, and the applicant would have no redress. It is impossible to imagine that Parliament intended such a drastic result. 98 To the extent to which the views expressed in VXDC and Lay Lat are said to be based on a reading of the explanatory memorandum and the second reading speech relating to the bill by which ss 51A , 357A and 422B were introduced into the Migration Act , I repeat the view I expressed in Moradian at [35]. Those documents do not contain statements specific enough to resolve any ambiguity in those provisions, or to disclose a purpose specific enough to warrant a construction of the provisions that would regard them as excluding the entirety of the principle of procedural fairness described as the 'natural justice hearing rule'.


case_text: To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act , it does not bind me to hold that Ms Antipova's only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act . In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act , VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170 at [28] , I remain of the view that the words 'in relation to the matters it deals with', appearing in each of ss 51A , 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words 'in relation to the matters it deals with' would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the 'plain words of necessary intendment' required to exclude the requirements of procedural fairness. See Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise. The present case forms a good example of what would result if the view expressed in Lay Lat were to be followed. Assuming that s 360(1) of the Migration Act does not have the meaning that it has in my view, the Tribunal could reduce the time of a hearing arbitrarily as much as it chose, interrupt and curtail the evidence of the applicant constantly, and deprive the applicant of any opportunity to put his or her case, and the applicant would have no redress. It is impossible to imagine that Parliament intended such a drastic result.


case_text: It is therefore necessary to see whether the particular denial of procedural fairness made a difference, in the sense referred to in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147, ie whether the Tribunal's error deprived Ms Antipova 'of the possibility of a successful outcome.' In the present case, the answer is plain. The Tribunal disbelieved Ms Antipova when she said that she was determined to make a life with Mr Petrou from the time she went to live with him on 18 May 2001. To a significant extent, the Tribunal's reasoning in this respect was based on its refusal to accept Ms Antipova's explanation of how she had come to continue with her marriage plans after meeting Mr Petrou, and then abandoned her marriage so soon after she had undertaken it. It was this very question that Ms Antipova was attempting to answer when the Tribunal member interrupted her, on several occasions, and asked her for a less detailed answer. If the Tribunal had been patient enough to listen to the detail, it might well have been persuaded to accept what Ms Antipova said. In other words, the very point on which Ms Antipova lost, because she was disbelieved, is one on which she would have given a fuller explanation, if the Tribunal had permitted her to do so. It cannot be said that the denial of procedural fairness in truncating Ms Antipova's evidence, to fit within a timetable about which she had not been warned, could have made no difference to the outcome of the proceeding. 101 It follows that the performance of the Tribunal's statutory function was affected by the denial of procedural fairness. The Tribunal's decision is therefore tainted by jurisdictional error, either because of its failure to comply with s 360 of the Migration Act , or because of a denial of procedural fairness, which s 357A of the Migration Act does not exclude from consideration. 102 Once the Tribunal had found that Ms Antipova and Mr Petrou had not been in a marriage-like relationship for 12 months before Ms Antipova applied for her visa, it was necessary for the Tribunal to determine whether reg 1.15A(2A)(b) of the Migration Regulations applied. The effect of that provision was that the requirements of reg 1.15A(2)(d) (in this case, the requirement of a mutual commitment to a shared life as husband and wife to the exclusion of all others for a period of 12 months immediately preceding the date of the application for a visa) did not apply if Ms Antipova could 'establish compelling and compassionate circumstances for the grant of the visa.'


case_text: In Neofotistou v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 919 (2005) 144 FCR 478 at [19] [28], the Court took a view similar to the one I have expressed, with respect to the provisions of reg 3A of the Migration Regulations 1989 (Cth). Regulation 3A(2) provided for the specification of a lesser period than the six-month period of cohabitation prior to the date of application for a visa, required by reg 3A(1), if : '(a) there are exceptional circumstances affecting the persons; and (b) there are compelling reasons for specifying that lesser period.' 107 At [24], North J expressed the view that it was not to be expected that a decision-maker would be required to ignore the current state of affairs, unless the legislation expressly required such an exercise to be undertaken. At [25], his Honour referred to the fact that reg 3A(2) was an ameliorating provision, which suggested that it should be given an expansive, rather than a restrictive, meaning. At [26], his Honour regarded any uncertainty arising from applying the assessment on the facts as they exist at the time of the decision, rather than at the time of the application, as insufficient to outweigh the intended ameliorating purpose of the regulation. His Honour did not refer to Boakye-Danquah . In many respects, the provision with which North J was dealing in Neofotistou was more similar to that with which Wilcox J was dealing in Boakye-Danquah than either is to reg 1.15A(2A) of the Migration Regulations. Despite the fact that North J appears to have been unaware of Boakye-Danquah , I regard Neofotistou as correct, and as supporting the view I take of reg 1.15A(2A). As I have said, Boakye-Danquah is distinguishable, because it dealt with a provision very different from reg 1.15A(2A).