case_outcome: related

case_text: 17 September 2009, I delivered Reasons for Judgment and made orders in the application by the Commonwealth of Australia and the Office of National Assessments ( the ONA ) whereby those parties sought to be excused from being required to produce documents in answer to a subpoena served upon the ONA by the applicants in these proceedings ( Watson v AWB Limited (No 2) [2009] FCA 1047 ( AWB No 2 )). On that day, I ordered that the ONA produce to the Court by no later than 25 September 2009 the 15 redacted reports used by Commissioner TRH Cole QC as the basis for the findings made by him in par 30.112 of Vol 4 of his Report of the Inquiry into Certain Australian Companies in relation to the UN Oil-for-Food Programme ( the 15 reports ) and all documents in the possession, custody, control or power of the ONA which show or tend to show to whom in the Department of Foreign Affairs and Trade each of the 15 reports was sent and when each such report was sent to such persons ( the distribution list ). I also directed that, by 25 September 2009, the ONA and the Commonwealth make any further submissions in support of their application that no access be granted to those reports. In accordance with the Orders which I made on 17 September 2009, the ONA and the Commonwealth produced to the Court the 15 reports and also made further submissions in writing. Some of the reports are copies and some are originals. A further document has also been produced in response to the orders which I made on 17 September 2009. At [49] [67] of AWB No 2 [2009] FCA 1047 , I explained my reasons for making the orders which I did on 17 September 2009. At [66] of AWB No 2 [2009] FCA 1047 I reserved for further consideration the question of whether the ONA's claim that the documents produced in response to the orders which I made on 17 September 2009 should nonetheless be protected from disclosure on public interest immunity grounds. I have inspected all of the documents produced to me. I have also considered the proposals advanced by the ONA and the Commonwealth as to the further masking which they submit is required should access be granted. As I am now considering what should be done at the second stage of the process, I am required to undertake the balancing exercise to which I referred at [54] [62] of AWB No 2 [2009] FCA 1047. That exercise involves weighing up the requirements of the due administration of justice, having regard to the circumstances of the present case, against the public interest in protecting the documents from disclosure. That public interest in the present circumstances involves the protection of the national interest and matters of national security. At [39] [44] in AWB No 2 [2009] FCA 1047 , I discussed the forensic purpose to which AWB asserted that it would put the documents were they made available to it. I will not repeat what I said in AWB No 2 [2009] FCA 1047 concerning that matter. However, it is the forensic purpose to which I have made reference in those paragraphs which I am weighing in the balance when considering the exigencies of the administration of justice in the present case. In essence, Counsel for AWB submitted that the 15 reports would constitute a body of evidence which might establish or which might tend to establish that the Department of Foreign Affairs and Trade ( DFAT ) knew of the payments which AWB stands accused of concealing from it. In particular, it was submitted that, because the Cole Distillation was not admissible in evidence, AWB needed access to the documents from which that Distillation was derived in order to be able to tender those documents at the trial in its own case as business records. Whilst the tender of the 15 reports, or one or more of them, was an important part of the submissions made on behalf of AWB, Counsel did not suggest or accept in his submissions that the tender of the documents in AWB's case was the only use to which the documents might be put. Having inspected the 15 reports and having read them carefully, I am firmly of the view that none of them could be tendered in evidence pursuant to s 69 of the Evidence Act 1995 (Cth) ( the Evidence Act ). Whilst AWB may well be able to satisfy some of the requirements of s 69 in respect of the 15 reports, it will not be able to satisfy the personal knowledge requirements laid down in subs (2) and (5) of that section. None of the reports is signed. Although some of the reports, in their unredacted form, clearly refer to sources of information, it is not possible to attribute to any particular statement in the reports any particular source, let alone come to a view as to whether that source had the requisite personal knowledge of the relevant facts. It would thus be impossible for the Court, when confronted with the tender of these documents, to be satisfied that the requirement of personal knowledge has been made out. The capacity to draw inferences pursuant to s 183 of the Evidence Act would not ameliorate this difficulty. In addition, there is a very real and substantial question as to whether any of the contents of the 15 reports would be held to be sufficiently relevant to justify the tender of those reports. As I pointed out in AWB No 2 [2009] FCA 1047 , AWB is not mentioned in any of the reports, only one document refers to any Australian company or entity and none of the documents specifies the wheat trade, with one exception. That exception was a November 2003 report which suggested that most large companies had refused to pay Iraqi imposed surcharges, citing, as an example, wheat imports from Australia. It is highly unlikely that AWB would wish to tender the November 2003 report to which I just referred. It is also unlikely that the contents of any of the 15 reports would, in any event, be regarded at trial as being sufficiently relevant to justify their tender, even if they were prima facie admissible under s 69 of the Evidence Act . There is also the problem which the existing masking presents for any tender. Although the masking, on its own, may not prevent the tender of at least some of the documents, it would probably do so in some cases. Consistent with what I said at [64] of AWB No 2 [2009] FCA 1047 , the mosaic analysis argument is the only argument which continues to find favour with me for resisting AWB's application for access to the 15 reports. It is extremely difficult for a Judge to second guess clear evidence to the effect that any disclosure of the contents of the 15 reports might lead to that sort of analysis being undertaken by persons who represent a threat to Australia's national interest. In AWB No 2 [2009] FCA 1047 , I said that I did not accept that this argument carried much weight at the time I delivered those Reasons. That is why I ordered that the 15 reports be produced to the Court. Now that I have inspected the reports and considered them carefully, I still tend to think that the mosaic analysis argument does not carry a great deal of weight in the present case. However, for the reasons which I have discussed at [9] [17] above, I am quite firmly of the view that the 15 reports will be of very little or no use to AWB in the pursuit of its defence to the allegations of concealment contained in pars 26, 27(a) and 28 of the current Statement of Claim. In the end, I think that the risk of harm to the national interest does outweigh the needs of AWB in the present proceedings and I propose to order that access not be granted to any person to the 15 reports which have been produced pursuant to the orders which I made on 17 September 2009. Several of the 15 reports bear no particular mark or indication as to whom (if anyone) at DFAT the reports were sent. However, the ONA and the Commonwealth have produced in response to the orders which I made on 17 September 2009, a Statutory Declaration made in 2006 for the purposes of the Cole Inquiry. At par 37 of that Statutory Declaration, the declarant has made certain statements concerning the identity of the persons within DFAT to whom each of seven of the reports was sent. I think that the Statutory Declaration, redacted as proposed by the ONA and the Commonwealth, should be produced for inspection by the legal representatives of the applicants and AWB. The redacted version of that document will provide the names of persons within DFAT who might conceivably have some knowledge of matters relevant to the present proceedings. I think that the parties are entitled to consider whether they wish to take steps to interview those persons or involve those persons in some way in the present proceedings. I will make orders accordingly. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 15 October 2009 Counsel for the Applicants: Mr MBJ Lee (appeared but was excused) Solicitor for the Applicants: Maurice Blackburn Pty Limited Counsel for the Respondent: Mr MJ Darke Solicitor for the Respondent: Allens Arthur Robinson Solicitor for the Commonwealth of Australia (acting through the Office of National Assessments): Mr AP Berger of Australian Government Solicitor Date of Judgment: 15 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1175.html


case_outcome: referred to

case_text: Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The Authority observed that in Aged Care Standards and Accreditation Agency , Branson J considered that only limited assistance was gained from categorising decisions as cancellation decisions or entitlements decisions (at [26]). Her Honour considered that it was necessary to consider the nature of the decision involved. In that case, the Tribunal was to review a decision to vary the period of accreditation for an aged care provider (this decision did not fit readily into the cancellation entitlement dichotomy). Her Honour considered that, in the legislation before her, the fact that a decision could be made only after an audit report was obtained and only within 14 days of receipt of that report was important. However, her Honour also applied the reasoning of Davies J in Freeman in concluding that the decision was not part of an administrative continuum. Her Honour also observed at [30] [31]: [30] ... In my view, the Tribunal would be undertaking a quite different process from that which the Principles required the accreditation body to undertake were it to review a decision made under s 3.24 by reference to factual material remote in time from the review audit report. In particular, I consider that on review of a decision made under s 3.24 it is not open to the approved provider to seek to undermine the significance of the review audit report, and the recommendations included in it, by calling evidence of improvements in its practice and procedure implemented after the date of the decision and in response to the review audit report and recommendations. [31] I conclude that the Tribunal would not be addressing the same questions as the applicant was required to address if it were to determine whether, at the time of the Tribunal's decision, the decision of the applicant under s 3.24 of the Principles can be seen to be the correct or preferable decision. This is not to say that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review. However, to be relevant to the Tribunal's decision, that evidence must, in my view, bear on the merits of the decision as at the time that it was required to be made.'


case_outcome: applied

case_text: first ground of appeal agitated in the Authority's written and oral submissions focused on the cancellation decision. It was common ground that in relation to the review of the decision to cancel the respondent's registration, the question for the Tribunal was whether that decision was the correct or preferable decision: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J; that is, whether it was the correct or preferable decision to conclude that the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. The primary issue raised by this ground was whether the Tribunal asked itself this question in relation to the correct point in time. The Authority submitted that the Tribunal did not consider whether, on 14 July 2003 the date of the Authority's decision the correct or preferable decision was to cancel the respondent's registration; rather, the question which the Tribunal asked itself was whether, on 2 September 2005 the date of the Tribunal's decision the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.


case_text: Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The respondent submitted that the 'clear line of authority' referred to by the Authority, beginning with the decision of Davies J in Freeman , in support of the submission that the correct point in time is the time of the decision under review, is not directly relevant to the present question and can be distinguished because those authorities relate to different legislative provisions. The respondent analysed the reasoning of the Court in Freeman . That case, it was said, is commonly cited as authority for the proposition that the relevant point in time at which the Tribunal is to determine a person's entitlement will differ, depending upon whether the decision under review was a decision refusing to grant an entitlement or whether it was one cancelling an existing entitlement. Where the decision is to refuse an entitlement, the point in time is the date of the Tribunal's decision, and where the decision is to cancel an entitlement, the Tribunal is limited to considering the state of affairs as it existed on the date of the decision under review. The respondent submitted that critical to the Court's reasoning in Freeman was that in that case the Tribunal had affirmed the decision under review to cancel the applicant's pension. This meant that 'no further matter [remained] for the Tribunal's consideration' (at 345) and any entitlement of the applicant for a further pension would only 'revive' when a fresh application for a pension had been made (at 345, 346). The respondent submitted that Freeman should not be taken as authority for any general principle that administrative decisions may be categorized either as 'cancellation' decisions or 'refusal' decisions, to which vastly different regimes of review are applicable. If it does, then it was respectfully submitted that it was wrong and should not be followed. It was submitted that any attempt to apply such a universal categorisation to 'cancellations' and 'refusals' merely distracts from the primary question, which is to identify the issues required under the particular legislation. The question here, according to the respondent, should therefore focus on whether s 303(1)(f) itself 'fixes a point in time'. The respondent submitted that there is nothing in s 303(1)(f) of the Act to suggest that the point in time for the determination of the fitness and integrity issue is to be limited to the date of the Authority's decision, and that the Tribunal is not entitled to take account of developments which have occurred up until the date of the Tribunal's decision. The respondent said: 'Indeed, a consideration of the provision suggests that the point in time should be the situation as it has developed by the time of the Tribunal's decision.' The respondent pointed out that the present case was, of course, factually different from Freeman, in that here the Tribunal set aside the Authority's decision to cancel the respondent's registration and substituted it with a decision to caution the respondent subject to conditions, whereas in Freeman the Tribunal had affirmed the decision to cancel the applicant's pension, so that 'no further matter [remained] for the Tribunal's consideration' . In Freeman, therefore, any entitlement of the applicant for a further pension would 'revive' only when a fresh application for a pension had been made. Here the decision had been set aside ab initio , so that the parties were placed in the position that they would have occupied had the decision never been made, so that the respondent had the benefit of the extant decision granting him registration: See Secretary, Department of Social Security v O'Connell (1992) 38 FCR 540, 549 550. The Tribunal therefore remained a part of the 'continuum' of the administrative decision-making process, and there was no impediment to it determining what were the appropriate orders to be made, as at the date of the Tribunal's decision. The respondent submitted that the only specific complaint made by the Authority as to 'irrelevant' evidence taken into account by the Tribunal, related to the respondent's 'current practice' and his 'current success rate'. When considered in the context of all the evidence before the Tribunal, both of these pieces of evidence were relevant either because they related to events that occurred before the cancellation decision, or they were after-acquired evidence. The respondent submitted that, on any view of s 303(1)(f) , the Tribunal was therefore entitled to take account of the evidence referred to as the respondent's 'current practice' and his 'current success rate' in relation to the cancellation decision. In addition, the respondent submitted that whether or not the Tribunal was entitled to take the after-acquired evidence into account in relation to the cancellation decision, it was undoubtedly required to take it into account in relation to the suspension decision and the two refusal decisions. On the Authority's case and the authority of Freeman , the point in time for those decisions would have been the date of the Tribunal's decision. Given that the Tribunal gave a joint decision on all four decisions under review, it was not possible for the Authority to establish with any degree of probability that the evidence of the respondent's 'current practice' and his 'current success rate' was necessarily taken into account in relation to the cancellation decision. The respondent noted that at no time during the Tribunal's hearing did the Authority object to the reception of the evidence relating to respondent's 'current practice' and his 'current success rate'. It was put that this may be relevant to the issue of costs should the Authority succeed in this appeal. The Authority submitted that in Freeman the issue for determination by the Tribunal was whether the decision to cancel on the date of the original cancellation was the correct or preferable decision, not whether the applicant was entitled to a benefit at the time of the Tribunal's decision. The Authority submitted that that is the same in this case. The question for the Tribunal was whether its cancellation decision in July 2003 was the correct or preferable decision, not whether the respondent might be eligible to be registered in September 2005. In Freeman , Davies J indicated that it is important to have regard to the nature of the decision. The distinction his Honour saw as critical was between: a decision to refuse to grant a pension or benefit where there was an ongoing entitlement, which can be seen as part of a continuum; and a decision to cancel a pension made on a particular date. A decision of this kind has no ongoing nature, once made it is spent. Davies J noted that, under the Social Security Act 1947 (Cth), once a benefit is cancelled it may only be paid again following a fresh application. That is also the position in the present legislative context. Where a migration agent has had his registration cancelled, he would need to apply for registration afresh and cannot make such an application for five years (s 292). In this sense, the present case is even stronger than that considered by Davies J in Freeman . Davies J noted that a further distinction between entitlement decisions and cancellation decisions is that in the former case but not the latter the Tribunal can decide entitlement throughout the relevant continuum up to its decision. This is not possible in cancellation cases because if the cancellation decision was correct or preferable, there is no further step. That is also the position here (and probably in all cancellation cases). The Authority noted that the respondent had sought to distinguish this case on the basis that the legislation is different. However, the Authority argued, no material difference was identified. The only difference is the one noted above and it tends to show that this case is even more clear cut than that in Freeman . It was also observed that the power to cancel pensions in the Social Security Act was not restricted to being exercised at some point in time. This, it was said, was not part of Davies J's analysis, contrary to the respondent's submissions. The Authority noted that the Full Court in Hospital Benefit Fund of WA v Minister for Health, Housing and Community Affairs approved the analysis of Davies J in Freeman (at 234.5). In that case, the legislation tied the primary decision-maker to a small period of time after certain rule changes were notified. The Court found that the Tribunal faced the same question as the primary decision-maker, which required it to look at the time the original decision should have been made. The legislation in that case is different from that in the present. However, the Authority submitted, the core principle is that the Tribunal must answer the same question as was answered by the primary decision-maker. For the reasons given by Davies J in Freeman , in a cancellation case, that involves whether the decision to cancel on the actual date of the cancellation was the correct or preferable decision. The Authority observed that this analysis was also endorsed and applied by Weinberg J in Sharma at 524 526 [61] [63] and, in the context of review of a decision to cancel a visa under the Act, by Katz J in Nong (albeit through reference to Weinberg J in Sharma , who applied Freeman ) at [29] [31]: '[29] As I understood the submission, at least in the form in which it appeared in Mr Nong's written outline of submissions filed in advance of the hearing before me, it was that the MRT had erred in not concluding that, on 6 January 2000, the date of its decision, Mr Nong was in compliance with condition 8202. [30] That submission may be dealt with quite briefly. [31] The MRT was not concerned, in making its decision, with the issue whether Mr Nong was or was not in compliance with condition 8202 on 6 January 2000, the date of its own decision. Rather, it was concerned with the issue whether Mr Nong had or had not been in compliance with condition 8202 on 30 March 1999, the date of the delegate's decision: see, for example, the discussion of the nature of the review function of the MRT's predecessor in Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513 at 524-526 [61] - [63] (Weinberg J). (Emphasis added.)' The Authority observed that in Aged Care Standards and Accreditation Agency , Branson J considered that only limited assistance was gained from categorising decisions as cancellation decisions or entitlements decisions (at [26]). Her Honour considered that it was necessary to consider the nature of the decision involved. In that case, the Tribunal was to review a decision to vary the period of accreditation for an aged care provider (this decision did not fit readily into the cancellation entitlement dichotomy). Her Honour considered that, in the legislation before her, the fact that a decision could be made only after an audit report was obtained and only within 14 days of receipt of that report was important. However, her Honour also applied the reasoning of Davies J in Freeman in concluding that the decision was not part of an administrative continuum. Her Honour also observed at [30] [31]: [30] ... In my view, the Tribunal would be undertaking a quite different process from that which the Principles required the accreditation body to undertake were it to review a decision made under s 3.24 by reference to factual material remote in time from the review audit report. In particular, I consider that on review of a decision made under s 3.24 it is not open to the approved provider to seek to undermine the significance of the review audit report, and the recommendations included in it, by calling evidence of improvements in its practice and procedure implemented after the date of the decision and in response to the review audit report and recommendations. [31] I conclude that the Tribunal would not be addressing the same questions as the applicant was required to address if it were to determine whether, at the time of the Tribunal's decision, the decision of the applicant under s 3.24 of the Principles can be seen to be the correct or preferable decision. This is not to say that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review. However, to be relevant to the Tribunal's decision, that evidence must, in my view, bear on the merits of the decision as at the time that it was required to be made.' In summary, the Authority submitted, by way of reply, that: (1) Applying the principles stated in Freeman , the review of a decision to cancel a migration agent's registration on a particular date involves a determination of whether that decision was the correct or preferable decision at that date. (2) Where a decision is made to cancel, say because an agent does not have the necessary ambit of knowledge of migration procedures at the time of the decision (as shown by a track record of failings in this regard), a review applicant cannot show that that was not the correct or preferable decision by acquiring the relevant knowledge thereafter. If the person has become eligible, he or she may then be able to apply for registration afresh. (3) Similarly, where a decision is made to cancel because of massive and serious violations of the Code of Conduct, it would be absurd if a review applicant could seek to rely upon compliance with the Code after the date of the decision. Compliance achieved by enforcement proceedings is not what the legislation is designed to achieve. Agents are required to comply with the legislation when registered. (4) For these reasons and the reasons outlined above, this Court should follow Freeman and the cases that have applied it and conclude that the question before the Tribunal, in relation to the cancellation decision, was whether the decision to cancel on 14 July 2003 was the correct or preferable decision having regard to the circumstances pertaining up to that time. (5) The respondent argued that it would be against the policy of the Act if the Tribunal were not permitted to have regard to events following the cancellation decision. He suggests there is no reason why the Tribunal should not find that it has become satisfied of s 303(1)(e) if an agent becomes bankrupt during the review processes. The Authority says that this reasoning is flawed and not necessary. A later bankruptcy does not indicate that any earlier decision to cancel because of lack of integrity was the correct or preferable decision. It is irrelevant to that question (or without more would be). The Authority could, of course, cancel the registration afresh on the basis of the bankruptcy when it becomes aware that that has happened. A person whose registration was wrongfully cancelled should not have it affirmed simply because a reason to cancel it subsequently arises. There is also a fresh power to cancel when a proper reason arises. Likewise, a person whose cancellation was correct or preferable should not be able to avoid that proper consequence because of actions taken after the decision to rectify perceived deficiencies. (6) Contrary to the respondent's submission, no part of the Authority's argument requires the notion of fitness or character to be narrowly construed. However, success rates in late 2003 and 2004 simply have no bearing on the respondent's fitness before that time; nor does any absence of subsequent breaches of the Code. (7) It may be accepted that evidence of 'character' after the date of the decision could be relevant because 'character' has been held to involve the enduring moral qualities of a person. So, for example, evidence that a person has lied or not been frank in their evidence after the date of the decision would be relevant not directly as breaches of a rule requiring honesty but as an indicia of a person's enduring moral qualities. An inference would be available that an adult prepared to lie to or mislead the Tribunal (or just not be frank) at its hearing had the same moral qualities at the time of the decision. However, this reasoning does not mean that evidence relating to every criteria post the cancellation decision is relevant. For example, evidence that an agent has knowledge in 2004 simply does not show that he had that knowledge in 2003. (8) The respondent's reliance upon Peko-Wallsend is misconceived. The Authority does not say that the Tribunal may not have regard to the most up to date evidence at hand. However, it has to be evidence that is relevant to the question at hand; the position in July 2003. (9) Contrary to the respondent's submission, the absence of a time limit for the making of a decision to cancel does not have the result that the Tribunal is required to make its decision on the basis of all evidence up to the time of its decision: Freeman ; Nong . (10) The respondent seeks to get some assistance from extrinsic materials. It is said that his construction is consistent with the object stated in the passage quoted. However, without conceding that this is a proper use of extrinsic materials, it may be answered by noting that the Authority's construction is also consistent with that object. (11) Contrary to the respondent's submission, it would not be inimical to the achievement of the objects of the provisions if the Tribunal could not have regard to adverse developments that happened after the making of the decision under review. The Authority would be having regard to such conduct and is ideally placed to take appropriate action even if a review is pending in relation to an earlier decision (indeed this happened in this very case, when the respondent's registration was suspended while the cancellation review was pending). (12) It would, however, be inimical to the achievement of the objects if agents who have been cancelled for failing to comply with the Code of Conduct or failing to maintain necessary knowledge can avoid that legislated consequence by relying upon subsequent improved conduct and subsequent compliance. A system of this kind is less likely to be effective in ensuring that agents comply at all times if there is a perception that (the consequences of) breaches can be avoided. (13) The respondent's submissions at [34] supra misconceive Davies J's reasons in Freeman . They did not turn upon the fact that the Tribunal had affirmed the cancellation decision but upon the nature of the decision under review. The respondent's argument is some kind of bootstraps argument. The Tribunal's decision is being challenged because it failed to appreciate the nature of its task. That task does not have a different nature according to the conclusion it reaches at the end of the task. (14) The respondent submitted that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked itself the correct question (as at July 2003). This is said to support a futility argument. This Court should not accept the proposition that the Tribunal's error (it is implicitly admitted by the respondent that it did answer the question as at September 2005 and, on the Authority's submissions as to law this would be an error of law) could not have made a difference. (15) First, some of the evidence was not relevant to 14 July 2003: (a) 'Is this form of file note taking ... does this represent approximately what your current practice would be with taking files notes--- Yes ... .' (AB 550) (b) 'Is that representative of your current practice in relation to client agreements?' (AB 551) (c) 'Mr Shi, do you now keep copies or is it your practice to keep copies of letters on file to your clients? Yes, yes.' (AB 555.3) (d) The evidence of his success rate from the beginning of 2003 until August 2004 presented in a form that did not disclose that rate as at July 2003. (AB 566 567, 575 576, 803, 775 776) (16) In any event, even if the evidence were all relevant it may have been weighted differently if the correct question were asked. The Court should remit the matter to the Tribunal if it finds that the Tribunal misunderstood its task. (17) As the Tribunal dealt with all four review decisions together, the Court cannot be sure that the Tribunal did not have regard to the later evidence only in relation to the decisions of later dates. The point is, however, that the Tribunal dealt with them all together when it needed to separate the decision according to their nature and the evidence that was relevant to each. The fact that it did not do this proves the Authority's case rather than the reverse. After having considered the relevant provisions of the Act, the authorities to which I was referred and the respective submissions of the parties, I have concluded that the 'clear line of authority', beginning with the decision of Davies J in Freeman , upon which the Authority relies, does govern the position in relation to the cancellation decision and that the question which the Tribunal had to ask itself was whether, on 14 July 2003, the correct or preferable decision was to cancel the respondent's registration; in other words, the question which the Tribunal had to ask itself was whether, as at that date, the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. I am of the view that the Tribunal did not ask itself this question. Rather, it asked itself whether, at the time of its decision, the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. I am impelled to the view that the Tribunal asked itself the wrong question by reference to the Tribunal's 2 September 2005 reasons, in particular at [14], [15] [17] and [24]: See the particular passages at [21] supra.


case_title: Hospital Benefit Fund of WA v Minister for Health, Housing and Community Affairs (1992) 39 FCR 225

case_text: Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The Authority noted that the Full Court in Hospital Benefit Fund of WA v Minister for Health, Housing and Community Affairs approved the analysis of Davies J in Freeman (at 234.5). In that case, the legislation tied the primary decision-maker to a small period of time after certain rule changes were notified. The Court found that the Tribunal faced the same question as the primary decision-maker, which required it to look at the time the original decision should have been made. The legislation in that case is different from that in the present. However, the Authority submitted, the core principle is that the Tribunal must answer the same question as was answered by the primary decision-maker. For the reasons given by Davies J in Freeman , in a cancellation case, that involves whether the decision to cancel on the actual date of the cancellation was the correct or preferable decision.


case_text: respondent submitted that, notwithstanding these findings, the Court should exercise its discretion to decline to grant the appeal because it would be futile to remit the matter for re-determination. The basis for this submission was that all of the matters taken into account by the Tribunal were open for it to consider, either because they pre-dated the decision under review or because they were after-acquired evidence. As such, any technical error in identifying the correct point in time would not have materially affected the Tribunal's decision: Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346 at [62] [64] per Sackville J. I cannot agree with this submission. First, I do not accept that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked the correct question (as at July 2003). Some of the evidence was not relevant to 14 July 2003. Examples of that are to be found at [47(15)] supra. In any event, as the Authority submitted ([47(16)] supra), even if the evidence was all relevant, it may have been weighted differently if the correct question were asked. Second, as Sackville J observed in Lu (at [64]), the correct approach is that stated in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147 and adopted in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 the test is whether the applicant could have been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute: 'If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant ... The question is not whether the decision-maker would probably have realised the same result even if the ... consideration had [not] been taken into account'.


case_text: an interpretation was, it was submitted, no more than an application of the 'general principle' referred to in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 ; (1986) 162 CLR 24, at 45 per Mason J (Gibbs CJ and Dawson J agreeing), that: '... an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made ... [which] is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.' As was said by Mason J in Peko-Wallsend (at 45): 'It would be a strange result indeed to hold that the ... [decision-maker] is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of ... [the case] , and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.' It was further submitted that an interpretation of s 303(1)(f) which allows for the Tribunal to consider information up until the time of its decision is also consistent with the objects and purpose of the scheme for registration of migration agents. The Minister's Second Reading Speech described the scheme as 'a registration scheme for migration agents designed to improve standards of professional conduct and quality of service', reflecting: '... the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber. It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources.' (G. Hand, Second Reading, Migration Amendment Bill (No. 3) 1992, House of Representatives Hansard, 27 May 1992, p. 2937.) The object of the disciplinary provisions in Part 3 , it was submitted, is to protect the public and to maintain proper standards in the migration profession rather than to take action by way of punishment. It would be inimical to this if the Tribunal was prevented from considering relevant information going to the issue of fitness to practice because the information had arisen after the decision under review. There was nothing, the respondent submitted, to suggest that the scheme would be promoted by restricting the Tribunal's consideration of an agent's integrity and fitness to practise to the earlier date of the decision under review, and to ignore the agent's current integrity and fitness to practise. In summary, the Authority submitted, by way of reply, that: (1) Applying the principles stated in Freeman , the review of a decision to cancel a migration agent's registration on a particular date involves a determination of whether that decision was the correct or preferable decision at that date. (2) Where a decision is made to cancel, say because an agent does not have the necessary ambit of knowledge of migration procedures at the time of the decision (as shown by a track record of failings in this regard), a review applicant cannot show that that was not the correct or preferable decision by acquiring the relevant knowledge thereafter. If the person has become eligible, he or she may then be able to apply for registration afresh. (3) Similarly, where a decision is made to cancel because of massive and serious violations of the Code of Conduct, it would be absurd if a review applicant could seek to rely upon compliance with the Code after the date of the decision. Compliance achieved by enforcement proceedings is not what the legislation is designed to achieve. Agents are required to comply with the legislation when registered. (4) For these reasons and the reasons outlined above, this Court should follow Freeman and the cases that have applied it and conclude that the question before the Tribunal, in relation to the cancellation decision, was whether the decision to cancel on 14 July 2003 was the correct or preferable decision having regard to the circumstances pertaining up to that time. (5) The respondent argued that it would be against the policy of the Act if the Tribunal were not permitted to have regard to events following the cancellation decision. He suggests there is no reason why the Tribunal should not find that it has become satisfied of s 303(1)(e) if an agent becomes bankrupt during the review processes. The Authority says that this reasoning is flawed and not necessary. A later bankruptcy does not indicate that any earlier decision to cancel because of lack of integrity was the correct or preferable decision. It is irrelevant to that question (or without more would be). The Authority could, of course, cancel the registration afresh on the basis of the bankruptcy when it becomes aware that that has happened. A person whose registration was wrongfully cancelled should not have it affirmed simply because a reason to cancel it subsequently arises. There is also a fresh power to cancel when a proper reason arises. Likewise, a person whose cancellation was correct or preferable should not be able to avoid that proper consequence because of actions taken after the decision to rectify perceived deficiencies. (6) Contrary to the respondent's submission, no part of the Authority's argument requires the notion of fitness or character to be narrowly construed. However, success rates in late 2003 and 2004 simply have no bearing on the respondent's fitness before that time; nor does any absence of subsequent breaches of the Code. (7) It may be accepted that evidence of 'character' after the date of the decision could be relevant because 'character' has been held to involve the enduring moral qualities of a person. So, for example, evidence that a person has lied or not been frank in their evidence after the date of the decision would be relevant not directly as breaches of a rule requiring honesty but as an indicia of a person's enduring moral qualities. An inference would be available that an adult prepared to lie to or mislead the Tribunal (or just not be frank) at its hearing had the same moral qualities at the time of the decision. However, this reasoning does not mean that evidence relating to every criteria post the cancellation decision is relevant. For example, evidence that an agent has knowledge in 2004 simply does not show that he had that knowledge in 2003. (8) The respondent's reliance upon Peko-Wallsend is misconceived. The Authority does not say that the Tribunal may not have regard to the most up to date evidence at hand. However, it has to be evidence that is relevant to the question at hand; the position in July 2003. (9) Contrary to the respondent's submission, the absence of a time limit for the making of a decision to cancel does not have the result that the Tribunal is required to make its decision on the basis of all evidence up to the time of its decision: Freeman ; Nong . (10) The respondent seeks to get some assistance from extrinsic materials. It is said that his construction is consistent with the object stated in the passage quoted. However, without conceding that this is a proper use of extrinsic materials, it may be answered by noting that the Authority's construction is also consistent with that object. (11) Contrary to the respondent's submission, it would not be inimical to the achievement of the objects of the provisions if the Tribunal could not have regard to adverse developments that happened after the making of the decision under review. The Authority would be having regard to such conduct and is ideally placed to take appropriate action even if a review is pending in relation to an earlier decision (indeed this happened in this very case, when the respondent's registration was suspended while the cancellation review was pending). (12) It would, however, be inimical to the achievement of the objects if agents who have been cancelled for failing to comply with the Code of Conduct or failing to maintain necessary knowledge can avoid that legislated consequence by relying upon subsequent improved conduct and subsequent compliance. A system of this kind is less likely to be effective in ensuring that agents comply at all times if there is a perception that (the consequences of) breaches can be avoided. (13) The respondent's submissions at [34] supra misconceive Davies J's reasons in Freeman . They did not turn upon the fact that the Tribunal had affirmed the cancellation decision but upon the nature of the decision under review. The respondent's argument is some kind of bootstraps argument. The Tribunal's decision is being challenged because it failed to appreciate the nature of its task. That task does not have a different nature according to the conclusion it reaches at the end of the task. (14) The respondent submitted that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked itself the correct question (as at July 2003). This is said to support a futility argument. This Court should not accept the proposition that the Tribunal's error (it is implicitly admitted by the respondent that it did answer the question as at September 2005 and, on the Authority's submissions as to law this would be an error of law) could not have made a difference. (15) First, some of the evidence was not relevant to 14 July 2003: (a) 'Is this form of file note taking ... does this represent approximately what your current practice would be with taking files notes--- Yes ... .' (AB 550) (b) 'Is that representative of your current practice in relation to client agreements?' (AB 551) (c) 'Mr Shi, do you now keep copies or is it your practice to keep copies of letters on file to your clients? Yes, yes.' (AB 555.3) (d) The evidence of his success rate from the beginning of 2003 until August 2004 presented in a form that did not disclose that rate as at July 2003. (AB 566 567, 575 576, 803, 775 776) (16) In any event, even if the evidence were all relevant it may have been weighted differently if the correct question were asked. The Court should remit the matter to the Tribunal if it finds that the Tribunal misunderstood its task. (17) As the Tribunal dealt with all four review decisions together, the Court cannot be sure that the Tribunal did not have regard to the later evidence only in relation to the decisions of later dates. The point is, however, that the Tribunal dealt with them all together when it needed to separate the decision according to their nature and the evidence that was relevant to each. The fact that it did not do this proves the Authority's case rather than the reverse. Noting the respondent's submission that the Authority was seeking something in the nature of merits review in its second ground, the Authority submitted that this was not the case because, here, the facts have been fully found: See Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355 356 per Mason CJ; Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 8 per Mason J. The Authority's case was that it was not open on the facts found by the Tribunal (see the Authority's principal submissions at [53] supra) to conclude otherwise than that the respondent was not a fit and proper person. Another way of identifying the same error was said to be highlighted by the respondent's submissions. The respondent was made subject to a supervisory obligation during the stay orders. This required him not to do protection visa work and to be supervised by another migration agent. This order is appropriate in circumstances where the Authority considered that the person is not fit and should be cancelled or suspended but a stay is put in place while the correctness of that decision is being reviewed. If however the Authority's decision to cancel or suspend was not correct, this must be because the person was fit and proper. On this conclusion, it was argued, no further supervision or restrictions would be appropriate. The Authority submitted that the very fact that the Tribunal considered that the public interest required the respondent to be supervised and to have his areas of work limited reveals that the Tribunal did not yet think he was fit and proper to be a migration agent. That is how the Court can readily conclude that the Tribunal has erred in its application of the law to the facts in this case. The Authority then turned to address the respondent's submission that the Act and the Code envisage that an agent who is not competent in certain areas of practice as a migration agent can nevertheless be fit to be an agent. Support for that proposition was said to be found in cl 4.1 and 4.2 of the Code. The Authority submitted that neither of those aspects of the Code accept a lack of competence. It envisages that agents may choose not regularly to practice in certain areas, which may lead an agent to be 'unsure' of what is appropriate. Rather than spend time and money looking this up, an agent can refer the matter to another who does work regularly in the field. This does not warrant the notion that migration agents can be fit and proper if they cannot be trusted or are otherwise unable to work in certain areas of practice.


case_text: Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The Authority observed that this analysis was also endorsed and applied by Weinberg J in Sharma at 524 526 [61] [63] and, in the context of review of a decision to cancel a visa under the Act, by Katz J in Nong (albeit through reference to Weinberg J in Sharma , who applied Freeman ) at [29] [31]: '[29] As I understood the submission, at least in the form in which it appeared in Mr Nong's written outline of submissions filed in advance of the hearing before me, it was that the MRT had erred in not concluding that, on 6 January 2000, the date of its decision, Mr Nong was in compliance with condition 8202. [30] That submission may be dealt with quite briefly. [31] The MRT was not concerned, in making its decision, with the issue whether Mr Nong was or was not in compliance with condition 8202 on 6 January 2000, the date of its own decision. Rather, it was concerned with the issue whether Mr Nong had or had not been in compliance with condition 8202 on 30 March 1999, the date of the delegate's decision: see, for example, the discussion of the nature of the review function of the MRT's predecessor in Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513 at 524-526 [61] - [63] (Weinberg J). (Emphasis added.)'


case_text: Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The Authority observed that this analysis was also endorsed and applied by Weinberg J in Sharma at 524 526 [61] [63] and, in the context of review of a decision to cancel a visa under the Act, by Katz J in Nong (albeit through reference to Weinberg J in Sharma , who applied Freeman ) at [29] [31]: '[29] As I understood the submission, at least in the form in which it appeared in Mr Nong's written outline of submissions filed in advance of the hearing before me, it was that the MRT had erred in not concluding that, on 6 January 2000, the date of its decision, Mr Nong was in compliance with condition 8202. [30] That submission may be dealt with quite briefly. [31] The MRT was not concerned, in making its decision, with the issue whether Mr Nong was or was not in compliance with condition 8202 on 6 January 2000, the date of its own decision. Rather, it was concerned with the issue whether Mr Nong had or had not been in compliance with condition 8202 on 30 March 1999, the date of the delegate's decision: see, for example, the discussion of the nature of the review function of the MRT's predecessor in Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513 at 524-526 [61] - [63] (Weinberg J). (Emphasis added.)' In summary, the Authority submitted, by way of reply, that: (1) Applying the principles stated in Freeman , the review of a decision to cancel a migration agent's registration on a particular date involves a determination of whether that decision was the correct or preferable decision at that date. (2) Where a decision is made to cancel, say because an agent does not have the necessary ambit of knowledge of migration procedures at the time of the decision (as shown by a track record of failings in this regard), a review applicant cannot show that that was not the correct or preferable decision by acquiring the relevant knowledge thereafter. If the person has become eligible, he or she may then be able to apply for registration afresh. (3) Similarly, where a decision is made to cancel because of massive and serious violations of the Code of Conduct, it would be absurd if a review applicant could seek to rely upon compliance with the Code after the date of the decision. Compliance achieved by enforcement proceedings is not what the legislation is designed to achieve. Agents are required to comply with the legislation when registered. (4) For these reasons and the reasons outlined above, this Court should follow Freeman and the cases that have applied it and conclude that the question before the Tribunal, in relation to the cancellation decision, was whether the decision to cancel on 14 July 2003 was the correct or preferable decision having regard to the circumstances pertaining up to that time. (5) The respondent argued that it would be against the policy of the Act if the Tribunal were not permitted to have regard to events following the cancellation decision. He suggests there is no reason why the Tribunal should not find that it has become satisfied of s 303(1)(e) if an agent becomes bankrupt during the review processes. The Authority says that this reasoning is flawed and not necessary. A later bankruptcy does not indicate that any earlier decision to cancel because of lack of integrity was the correct or preferable decision. It is irrelevant to that question (or without more would be). The Authority could, of course, cancel the registration afresh on the basis of the bankruptcy when it becomes aware that that has happened. A person whose registration was wrongfully cancelled should not have it affirmed simply because a reason to cancel it subsequently arises. There is also a fresh power to cancel when a proper reason arises. Likewise, a person whose cancellation was correct or preferable should not be able to avoid that proper consequence because of actions taken after the decision to rectify perceived deficiencies. (6) Contrary to the respondent's submission, no part of the Authority's argument requires the notion of fitness or character to be narrowly construed. However, success rates in late 2003 and 2004 simply have no bearing on the respondent's fitness before that time; nor does any absence of subsequent breaches of the Code. (7) It may be accepted that evidence of 'character' after the date of the decision could be relevant because 'character' has been held to involve the enduring moral qualities of a person. So, for example, evidence that a person has lied or not been frank in their evidence after the date of the decision would be relevant not directly as breaches of a rule requiring honesty but as an indicia of a person's enduring moral qualities. An inference would be available that an adult prepared to lie to or mislead the Tribunal (or just not be frank) at its hearing had the same moral qualities at the time of the decision. However, this reasoning does not mean that evidence relating to every criteria post the cancellation decision is relevant. For example, evidence that an agent has knowledge in 2004 simply does not show that he had that knowledge in 2003. (8) The respondent's reliance upon Peko-Wallsend is misconceived. The Authority does not say that the Tribunal may not have regard to the most up to date evidence at hand. However, it has to be evidence that is relevant to the question at hand; the position in July 2003. (9) Contrary to the respondent's submission, the absence of a time limit for the making of a decision to cancel does not have the result that the Tribunal is required to make its decision on the basis of all evidence up to the time of its decision: Freeman ; Nong . (10) The respondent seeks to get some assistance from extrinsic materials. It is said that his construction is consistent with the object stated in the passage quoted. However, without conceding that this is a proper use of extrinsic materials, it may be answered by noting that the Authority's construction is also consistent with that object. (11) Contrary to the respondent's submission, it would not be inimical to the achievement of the objects of the provisions if the Tribunal could not have regard to adverse developments that happened after the making of the decision under review. The Authority would be having regard to such conduct and is ideally placed to take appropriate action even if a review is pending in relation to an earlier decision (indeed this happened in this very case, when the respondent's registration was suspended while the cancellation review was pending). (12) It would, however, be inimical to the achievement of the objects if agents who have been cancelled for failing to comply with the Code of Conduct or failing to maintain necessary knowledge can avoid that legislated consequence by relying upon subsequent improved conduct and subsequent compliance. A system of this kind is less likely to be effective in ensuring that agents comply at all times if there is a perception that (the consequences of) breaches can be avoided. (13) The respondent's submissions at [34] supra misconceive Davies J's reasons in Freeman . They did not turn upon the fact that the Tribunal had affirmed the cancellation decision but upon the nature of the decision under review. The respondent's argument is some kind of bootstraps argument. The Tribunal's decision is being challenged because it failed to appreciate the nature of its task. That task does not have a different nature according to the conclusion it reaches at the end of the task. (14) The respondent submitted that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked itself the correct question (as at July 2003). This is said to support a futility argument. This Court should not accept the proposition that the Tribunal's error (it is implicitly admitted by the respondent that it did answer the question as at September 2005 and, on the Authority's submissions as to law this would be an error of law) could not have made a difference. (15) First, some of the evidence was not relevant to 14 July 2003: (a) 'Is this form of file note taking ... does this represent approximately what your current practice would be with taking files notes--- Yes ... .' (AB 550) (b) 'Is that representative of your current practice in relation to client agreements?' (AB 551) (c) 'Mr Shi, do you now keep copies or is it your practice to keep copies of letters on file to your clients? Yes, yes.' (AB 555.3) (d) The evidence of his success rate from the beginning of 2003 until August 2004 presented in a form that did not disclose that rate as at July 2003. (AB 566 567, 575 576, 803, 775 776) (16) In any event, even if the evidence were all relevant it may have been weighted differently if the correct question were asked. The Court should remit the matter to the Tribunal if it finds that the Tribunal misunderstood its task. (17) As the Tribunal dealt with all four review decisions together, the Court cannot be sure that the Tribunal did not have regard to the later evidence only in relation to the decisions of later dates. The point is, however, that the Tribunal dealt with them all together when it needed to separate the decision according to their nature and the evidence that was relevant to each. The fact that it did not do this proves the Authority's case rather than the reverse.


case_text: as Sackville J observed in Lu (at [64]), the correct approach is that stated in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147 and adopted in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 the test is whether the applicant could have been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute: 'If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant ... The question is not whether the decision-maker would probably have realised the same result even if the ... consideration had [not] been taken into account'.


case_text: Tribunal granted stays in respect of each of the Authority's decisions the subject of challenge, although the first refusal decision was only stayed by consent after the matter had been remitted from this Court to the Tribunal in Shi v The Migration Institute of Australia Ltd [2003] FCA 1304 ; (2003) 134 FCR 326; and the cancellation decision was stayed subject to conditions that the respondent be supervised by another migration agent and that he undertake not to engage in any business relating to protection visas. The Tribunal split its decision-making process, first by making findings of fact on the respondent's alleged breaches of the Code of Conduct prescribed by s 314 of the Act finding 51 such breaches, of which 47 related to protection visa cases ('the 6 April 2005 findings') and then, after receiving submissions on those findings, publishing its decision and reasons for decision on 2 September 2005, making findings on whether the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance pursuant to s 303(1)(f) of the Act ('the 2 September 2005 reasons'). The Tribunal made the following findings of fact in the 6 April 2005 findings: (1) The Tribunal found that the respondent did not 'encourage' (in the sense of 'incite') any visa applicant to lodge a protection visa application. It was, therefore, unnecessary to decide whether the applications made were 'grossly unfounded' so as to breach cl 2.17 of the Code as it stood prior to 1 July 1999 (at [46]). However, it found that the respondent's handling of these applications was relevant to other alleged breaches of the Code and to a determination pursuant to s 303(1)(f). (2) The respondent was unaware of the requirement in cl 2.17 of the Code, introduced in 1999, that he obtain written acknowledgement of advice from his client where his advice had been that the visa application was grossly unfounded but the client, nevertheless, wished to lodge the application (at [67]). The Tribunal characterised this as a 'very serious breach' of cl 2.3 of the Code (concerning a sound working knowledge of the Act and Regulations) and a consequential breach of cl 2.1 of the Code (concerning a requirement to act in accordance with the law and competently and diligently) (at [68]). (3) The respondent did not have a sound working knowledge of the Act and Regulations and was not diligent if he was unaware of provisions of the Code so long after they came into force (until they were brought to his attention in the course of investigations as to whether his registration should be cancelled in 2002) (at [69]). (4) The respondent conceded that a number of the applications he had lodged had no hope of success (at [66], [84] and [106]). The Tribunal found that he had made one application that was grossly unfounded (at [107]). (5) The Tribunal found that the respondent had on many occasions breached cl 6.1 of the Code, which requires file notes to be taken of all substantive and material communications between client and agent (at [75], [79], [80], [92], [99], [108], [113], [116], [119] and [215]). The Tribunal considered the massive failure in this regard to be serious (at [130]). The respondent ultimately conceded that he had a systemic problem with keeping adequate file notes and that he had undoubtedly breached cl 6.1 (at [162]). (6) The Tribunal noted instances where the respondent altered his evidence as he became aware of material which contradicted what he had previously said (at [77], [87], [129] and [146]). (7) The Tribunal also criticised aspects of the respondent's evidence as being speculative and unconvincing explanations proffered when he simply did not know what had occurred in relation to particular clients (at [81], [82], [89], [108], [109] and [141]). It also found many instances where the respondent's evidence was designed to excuse his poor handling of an application or file-keeping (at [85], [88], [173] and [222]). These and other defects led to aspects of his evidence not being accepted by the Tribunal on the basis of his credit (at [90], [93], [97], [103], [120] and [167]). (8) Ultimately, the Tribunal 'did not find Mr Shi a reliable witness. His evidence changed on numerous occasions so as to reduce his responsibility for various breaches of the Code or other failures within his practice' (at [232]). (9) The Tribunal found that the respondent had failed to sufficiently address matters required by visa applications, which constituted a breach of cl 2.1 and 2.19 (at [78], [87], [96] and [113]). The Tribunal also noted that the respondent's applications under s 417 were defective in that they did not address the relevant criteria, which the Tribunal found as relevant to his fitness to be a migration agent (at [110]). (10) The Tribunal was critical of the respondent's approach that it was his job to state the facts and for the Department to link the facts to the law. It considered that it was part of his job to know the relevant criteria (at [88]). (11) The Tribunal found that the respondent had repeatedly breached cl 2.8 of the Code by failing to keep his clients informed of the progress of their matters and outcomes in writing (at [89], [92], [101], [137] and [215]). (12) The Tribunal found that the respondent had systemically failed to comply with Part 7 of the Code, which required documentation of amounts of money paid (at [111] and [168]). Moreover, it found that he had chosen not to comply with trust arrangements to save his own compliance costs (at [179]). (13) The Tribunal set out evidence about the respondent's inadequate supervision of his staff in relation to protection visa applications. He allowed cutting and pasting of personal claims (at [115], [118], [140], [142] and [193]). This constituted breaches of cl 8.1 and 8.2 of the Code (at [194]). (14) The respondent conceded and the Tribunal found that the respondent had repeatedly breached cl 5.2 of the Code, which required agents to obtain written acceptance of the terms of service as soon as possible after receiving instructions (at [159]). The Tribunal further found that his failure to comply with this requirement 'reinforce[ed] [its] view that he [had] paid scant attention to the Code at all. He ran his business in his own way. If a practice satisfied the Code, that was coincidental rather than intentional' (at [160]). (15) The respondent conceded that his lodging review applications for three clients in the Tribunal (which had no jurisdiction in relation to the relevant decision) constituted breaches of cl 2.1(b), 2.3, 2.5(a)(iii) and cl 4.1 of the Code (at [197]). (16) The Tribunal noted an instance where the respondent did not appreciate the appropriate procedure. What he had done was inappropriate. He had no idea what needed to be done (at [229]). Because what the respondent had done did not amount to the making of an 'application', it did not breach the Code but it was still relevant to his fitness. The Tribunal found that this case revealed that the respondent 'did not possess a sound knowledge of the Act and Regulations as they related to the circumstances of his client' (at [230]). In the 2 September 2005 reasons the Tribunal concluded that it was not satisfied that the respondent was not a person of integrity or was not otherwise a fit and proper person to give immigration assistance (at [24]). The Tribunal made orders setting aside the four decisions under review (at [28] [31]). The cancellation decision was substituted with a decision that the respondent be issued with a caution pursuant to s 303(1)(c) , to be lifted after three years provided that the respondent be supervised and not provide immigration assistance with respect to protection visas (see s 304A). The first refusal decision was substituted with a decision that the respondent's repeat registration be approved. The suspension decision was substituted with a decision that the respondent's registration not be suspended. The second refusal decision was substituted with a decision to renew the respondent's repeat registration. The Tribunal's reasons for these decisions may be summarised as follows: (1) The Tribunal noted the extent and nature of the respondent's breaches of the Code (at [10]); in particular: (i) that 51 of the alleged 98 breaches had been upheld by the Tribunal; and (ii) that 47 of the 51 sustained breaches related to protection visa cases during the period from September 1998 to October 2001 and the other four related to subclass 457 visa applications filed between October 1997 and January 2000. (2) The Tribunal accepted the respondent's argument that there was no proven disadvantage to any of the respondent's clients because of his conduct (at [11]). (3) The breaches found by the Tribunal, considered as a whole, indicate that the respondent did not appreciate his obligation to know what the Code required and to comply with its terms as they existed from time to time (at [12]), and that if his practice satisfied the requirements of the Code, that was coincidental rather than intentional (at [13]). (4) The Tribunal noted the respondent's contention that 94 per cent of the breaches found related to protection visas (an area in which he had ceased to practise) and occurred over four years ago (at [14]). (5) The Tribunal noted the respondent's argument that his 'current practice' was most relevant when considering issues of public protection and maintenance of proper standards. The Tribunal characterised this factor as a relevant consideration (at [15] [16]). (6) The respondent also sought to rely upon his 'current success rate', a factor which the Tribunal accepted to be relevant (at [17]). (7) The Tribunal found that, in relation to his making s 417 and review applications in the Tribunal, the respondent's actions reflected a lack of understanding of the relevant law and, more importantly, a lack of judgment on his part. 'He seemed to just keep doing something to seek review of a decision, whether or not there was any real chance of success' (at [19]). (8) The Tribunal gave some weight to its adverse findings on the respondent's credit (at [20]). (9) As mentioned above, having considered all the evidence, the Tribunal was not satisfied that the respondent was not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) (at [24]). (10) The Tribunal took into account that the respondent had had a supervising migration agent for over two years who was a knowledgeable and experienced migration agent and who held the respondent in high regard. It also gave weight to the fact that there had been no breaches since the cancellation decision was made and the respondent's rate of success had been very high in recent years (at [24]). (11) The Tribunal concluded that cancellation was not appropriate in relation to the respondent's breaches of the Code (s 303(1)(h)). It considered that the appropriate decision was to issue a caution subject to conditions (at [25] [26]).


case_title: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141


case_outcome: followed

case_text: In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 Mansfield J referred to the judgment of the Full Court in SBAH and to other authorities concerning the situation of a child on whose behalf, and for whose benefit, an adult had commenced a proceeding. Having done so, his Honour dispensed with compliance with the "formal steps" by which such an appointment is ordinarily made and appointed the father of the child applicant in that case as her next friend. It would appear that the dispensation granted by his Honour extended to compliance with O 43 r 5(2).


case_outcome: cited

case_text: In Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 at [6] I deprecated the artificiality of a statement such as that purportedly made by SZJXW in this matter. I endorse the observation subsequently made by Madgwick J in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 ; (2002) 126 FCR 552 at [9] . His Honour there said: ...there appears to be a need for legislative attention to the difficult and sensitive problem of dealing fairly and practically with the position, at various points primary decision, the Refugee Review Tribunal review, and judicial review of a child present in Australia who may be in need of asylum for reasons recognised by the relevant Convention.


case_text: In Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 at [6] I deprecated the artificiality of a statement such as that purportedly made by SZJXW in this matter. I endorse the observation subsequently made by Madgwick J in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 ; (2002) 126 FCR 552 at [9] . His Honour there said: ...there appears to be a need for legislative attention to the difficult and sensitive problem of dealing fairly and practically with the position, at various points primary decision, the Refugee Review Tribunal review, and judicial review of a child present in Australia who may be in need of asylum for reasons recognised by the relevant Convention. 7 Counsel for the Minister on this appeal was not able to advise me of any steps taken to address the problems identified in SBAH. It is presumably for this reason that officers of the Department of Immigration and Multicultural and Indigenous Affairs engaged in correspondence with SZJXW, addressed to her care of her parents, and officers of the Refugee Review Tribunal engaged in correspondence with her directly, including extending to her an invitation to attend a hearing. It would, I respectfully suggest, be in everyone's interest if provision could be made for a more sensible way of dealing with a claim for protection advanced on behalf of an infant. 8 Order 43 rule 1(1) of the Federal Court Rules provides that an infant may sue by his or her next friend. Order 43 rule 5(2) provides that a tutor (which term is defined by O 1 r 4 to include a next friend) must act by a solicitor. The tutor must not have an interest in the proceeding adverse to the infant (O 43 r 4(3)). This requirement might ordinarily be expected, in any case on which the Minister is the guardian of the infant pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth), to disqualify the Minister from assuming the role of next friend. I do not thereby imply that the Minister is the guardian of SZJXW. No submissions were advanced to the Court on that question. 9 In SBAH the Full Court, after considering the provisions of O 43 of the Federal Court Rules , took the view that an appeal instituted on behalf of an infant by her mother, who had not complied with the requirements of O 43 r 4, was not a nullity but that the mother's want of authority meant that the outcome of the appeal would not bind the infant. 10 In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 Mansfield J referred to the judgment of the Full Court in SBAH and to other authorities concerning the situation of a child on whose behalf, and for whose benefit, an adult had commenced a proceeding. Having done so, his Honour dispensed with compliance with the "formal steps" by which such an appointment is ordinarily made and appointed the father of the child applicant in that case as her next friend. It would appear that the dispensation granted by his Honour extended to compliance with O 43 r 5(2).


case_text: The Federal Magistrate rejected the claim that the Tribunal was obliged to notify SZJXW pursuant to s 424A of the Act that it had information, obtained from its own observations, that neither she nor her father had the appearance of persons of Caucasian ethnicity. His Honour relied on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] in concluding that the Tribunal's observations were not "information" within the meaning of s 424A. His Honour was, I consider, right to do so. In any event, as indicated above, the Tribunal rejected for other reasons the claim that SZJXW's father had suffered harm because he had the appearance of a Caucasian. In the circumstances it would be inappropriate to grant the appellant any relief in respect of a breach of s 424A of the Act even if it be assumed that there was such a breach. 24 Ground III also fails. 25 The appeal will be dismissed. I will hear the parties as to costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 28 February 2008 Counsel for the Appellant: The appellant appeared by her next friend Counsel for the Respondent: Mr P Cleary Solicitor for the Respondent: Clayton Utz Date of Hearing: 13 February 2008 Date of Judgment: 28 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/143.html


case_text: The appellant is a citizen of India. He arrived in Australia on 18 June 2006 in possession of a business visa, which bore a false name. On 14 July 2006, he made an application for a protection visa. A delegate of the Minister's predecessor, the Minister for Immigration and Multicultural Affairs, decided to refuse to grant the visa on 12 September 2006. The appellant applied to the Tribunal for review of the delegate's decision. On 29 December 2006, the Tribunal affirmed the decision not to grant a protection visa. The appellant applied to the Federal Magistrates Court for remedies that would have had the effect of setting aside the Tribunal's decision and causing the Tribunal to re-determine his application for review of the delegate's decision. Before his application was heard, he filed in the Federal Magistrates Court an amended application. On 12 November 2007, the Federal Magistrates Court dismissed the application and the amended application, and ordered the appellant to pay the Minister's costs of $5,000. The orders and reasons for judgment of the Federal Magistrates Court are published as SZKCU v Minister for Immigration & Anor [2007] FMCA 1926. The appellant then filed in this Court a notice of appeal, together with an affidavit, sworn by him on 28 November 2007. 3 The notice of appeal named only the Minister as the respondent. A notice of appearance was filed on behalf of the Minister. After the notice of appearance was filed, the Minister's legal representatives began filing documents in which the Minister is designated as the first respondent and the Tribunal is named as the second respondent. As far as I am aware, no order was made joining the Tribunal as a party, or amending the title to the proceeding. The Tribunal was a party to the proceeding in the Federal Magistrates Court. As the decision-maker, it would be the party to which orders would be directed, particularly an order for mandamus, if the appeal were allowed. It is therefore necessary that the Tribunal be bound by the judgment of the Court. It is clear that the Tribunal should be a party. An order should be made, joining the Tribunal as the second respondent, and amending the title to the proceeding accordingly. 4 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two documents, taken together as the "Convention". For present purposes, it is sufficient to say that, pursuant to the Convention, Australia has protection obligations to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country


case_text: Echo Bay Mines Ltd v R [1992] 3 CF 707, a Canadian Trial Court decision, was cited but was of little assistance. It was a case concerned with the calculation of income tax. The Court there held that the price received by the taxpayer for the silver it produced was the sum of receipts from delivery of actual production and from settlement of forward sales contracts. The judge applied observations made in the Supreme Court of Canada in Atlantic Sugar Refineries v Minister of National Revenue [1949] CTC 196, another income tax case concerned with whether profits on sugar futures formed part of income. In that case Locke J (Kellock J concurring) said (at [12]): In trades where natural products are purchased in large quantities, hedging is a common, and in some cases, a necessary practice, and the cost of such operations in trades of this nature is properly allowable as an operating expense of the business. Where, as in the present case, the trader elects to close out his short sales and take a profit, this is, in my opinion, properly classified as profit from carrying on the trade. In Echo Bay Mines [1992] 3 CF 707, MacKay J said (at 733): I conclude that the price received by the plaintiff for the silver it produced was the sum of receipts from delivery of actual production and from settlement of forward sales contracts. The business of the plaintiff was silver production. In these circumstances where the plaintiff participated in forward sales contracts and settlements, however, as a hedge against price fluctuations in silver, and in which the commodity traded was silver futures, I do not conclude that the plaintiff was involved in futures speculation for investment purposes. There was a clear business purpose in its sales and settlement of silver futures contracts, a purpose integrated with its sales of product to yield income; the plaintiff was trying to obtain an assured price for the sale of the silver it produced. ... Here the forward sales transactions were in respect of the same commodity as the plaintiff's production; both were, in my view, integral aspects of the plaintiff's business of producing silver, and returns from these activities were income from production of metals within Regulation 1204(1).


case_text: One of the cases cited was Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1525 ; (2003) 137 FCR 317 in which I said (at [382]): Although there are some loose, but not entirely appropriate, analogies between the derivative contract and a form of insurance in my opinion, for present purposes, the derivative contracts ought to be regarded as an integral part of the pricing and payment arrangements between generators and retailers in relation to the underlying product, which is electrical energy, and which they deal with "as if" it had been sold from supplier to retailer. That observation was made in a statutory context quite different from the present. The case was concerned with whether a proposed acquisition of an interest in an electricity base load generator by an electricity retailer would have, or be likely to have, the effect of substantially lessening competition in a market in Australia. The question of the relationship between derivative contracts and sale of the relevant commodity which, in that case was electricity, was relevant to the question whether there were separate markets to be considered, one for the purchase and sale of derivatives and the other for the sale of electricity. The observation which was quoted from the judgment in that case reflects what Professor Garnaut had to say about the way in which an economist would regard hedging expenses in relation to sales. For the reasons which I have already outlined in discussing his evidence, that kind of equation does not assist in the construction of s 24(a) and (b).


case_text: As I said in the interlocutory decision in Woodside Energy [2006] FCA 1303 ; 155 FCR 357 at 374, the words "in relation to" and similar terms such as "in respect of" or "in connection with" or just "in" have been considered in many cases and many contexts. All of them indicate a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection sufficient to answer the statutory description depends upon its context. The term "in respect of" was said to "[gather] meaning from the context in which it appears ...": Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-4 per Deane, Dawson and Toohey JJ. The term "in relation to" has been called a "prepositional phrase" which is "indefinite" and which "subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters": O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). As the present case illustrates the extent of the relationship required depends upon the context in which the words are used. See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482. Context and purpose are everything in the construction of such indefinite phrases as "in relation to". The citation of authorities, a number of which were canvassed in argument, is of limited assistance where they relate to different statutory settings.


case_text: Debates about the application and purpose of s 46 of the Trade Practices Act 1974 (Cth) concerning abuse of market power, illustrate the point. On one view the proper purpose of s 46 as enacted was to protect competition rather than competitors: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1 at 13; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. Nevertheless the section has been subject to amendment designed to protect the interests of small business rather than the competitive process. The High Court has observed that statutes sometimes embody responses to "shifting and contradictory positions" taken by a range of interest holders in legislative outcomes and expressing "an inarticulate (or at least not publicly disclosed) compromise": Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at [32].


case_title: Echo Bay Mines Ltd v R [1992] CF 707

case_text: Echo Bay Mines Ltd v R [1992] 3 CF 707, a Canadian Trial Court decision, was cited but was of little assistance. It was a case concerned with the calculation of income tax. The Court there held that the price received by the taxpayer for the silver it produced was the sum of receipts from delivery of actual production and from settlement of forward sales contracts. The judge applied observations made in the Supreme Court of Canada in Atlantic Sugar Refineries v Minister of National Revenue [1949] CTC 196, another income tax case concerned with whether profits on sugar futures formed part of income. In that case Locke J (Kellock J concurring) said (at [12]): In trades where natural products are purchased in large quantities, hedging is a common, and in some cases, a necessary practice, and the cost of such operations in trades of this nature is properly allowable as an operating expense of the business. Where, as in the present case, the trader elects to close out his short sales and take a profit, this is, in my opinion, properly classified as profit from carrying on the trade. In Echo Bay Mines [1992] 3 CF 707, MacKay J said (at 733): I conclude that the price received by the plaintiff for the silver it produced was the sum of receipts from delivery of actual production and from settlement of forward sales contracts. The business of the plaintiff was silver production. In these circumstances where the plaintiff participated in forward sales contracts and settlements, however, as a hedge against price fluctuations in silver, and in which the commodity traded was silver futures, I do not conclude that the plaintiff was involved in futures speculation for investment purposes. There was a clear business purpose in its sales and settlement of silver futures contracts, a purpose integrated with its sales of product to yield income; the plaintiff was trying to obtain an assured price for the sale of the silver it produced. ... Here the forward sales transactions were in respect of the same commodity as the plaintiff's production; both were, in my view, integral aspects of the plaintiff's business of producing silver, and returns from these activities were income from production of metals within Regulation 1204(1). 273 The decision of MacKay J in Echo Bay Mines [1992] 3 CF 707 was approved by the Supreme Court of Canada in Placer Dome Canada Ltd v Ontario (Minister of Finance) (2006) SCC 20. In that case the Supreme Court held that hedging transactions fixed the price for the output of a mine. It approved the reasoning of Gillese JA who dissented in the Court of Appeal of Ontario: Placer Come Canada Ltd v Ontario (Minister of Finance) (2004) 190 OAC 157. Woodside Energy relied upon a passage from the dissenting judgment of Gillese JA as supportive of the position taken by Woodside Energy. Her Honour said (at [119]): The general purpose of the Act is to tax output from a mine. However, there is no reason to refer to anything but the first type of consideration in the definition of "proceeds" if the purpose of that provision is limited to taxing output. The apparent purpose of including the second and third types of consideration is to tax gains arising from specified types of financial transactions (ie hedging, future sales or forward sales) that are related to the output of the mine. The view that hedging transactions were related to the output of the mine in that case was said by counsel for Woodside Energy to sit comfortably with the conclusion that hedge expenses can be incurred "in relation to" the sale of petroleum produced from a petroleum project.


case_title: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1


case_title: O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356


case_text: The decision of MacKay J in Echo Bay Mines [1992] 3 CF 707 was approved by the Supreme Court of Canada in Placer Dome Canada Ltd v Ontario (Minister of Finance) (2006) SCC 20. In that case the Supreme Court held that hedging transactions fixed the price for the output of a mine. It approved the reasoning of Gillese JA who dissented in the Court of Appeal of Ontario: Placer Come Canada Ltd v Ontario (Minister of Finance) (2004) 190 OAC 157. Woodside Energy relied upon a passage from the dissenting judgment of Gillese JA as supportive of the position taken by Woodside Energy. Her Honour said (at [119]): The general purpose of the Act is to tax output from a mine. However, there is no reason to refer to anything but the first type of consideration in the definition of "proceeds" if the purpose of that provision is limited to taxing output. The apparent purpose of including the second and third types of consideration is to tax gains arising from specified types of financial transactions (ie hedging, future sales or forward sales) that are related to the output of the mine. The view that hedging transactions were related to the output of the mine in that case was said by counsel for Woodside Energy to sit comfortably with the conclusion that hedge expenses can be incurred "in relation to" the sale of petroleum produced from a petroleum project.