case_text: The disjunctive language used in the passages from Ha and Matthews demonstrates that a tax imposed on any one of the steps referred to will qualify as a duty of excise. For example a tax imposed on the sale of goods to consumers would be an excise, as would a tax imposed on the manufacture of goods without any necessary reference to their sale. In support of its contention Caltex relied particularly upon passages in Anderson's Pty Ltd v Victoria [1964] HCA 77 ; (1964) 111 CLR 353 ( Anderson's) and Bolton v Madsen [1963] HCA 16 ; (1963) 110 CLR 264 ( Bolton ), which were followed by the Full Court of this Court in Commissioner for A.C.T. Revenue v Kithock Pty Ltd [2000] FCA 1098 ; (2000) 102 FCR 42 ( Kithock ) . In Anderson's , Barwick CJ said at 364: [T]he judicial formulation of the nature of a duty of excise within the meaning of the Constitution has progressed over the intervening years. It has now, however, in my opinion, received definitive exposition by this Court, and, however much other views might have been possible at an earlier stage, it ought now to be taken as settled that the essence of a duty of excise is that it is a tax upon the taking of a step in a process of bringing goods into existence or to a consumable state, or of passing them down the line which reaches from the earliest stage in production to the point of receipt by the consumer. (Emphasis added.)


case_outcome: distinguished

case_text: The disjunctive language used in the passages from Ha and Matthews demonstrates that a tax imposed on any one of the steps referred to will qualify as a duty of excise. For example a tax imposed on the sale of goods to consumers would be an excise, as would a tax imposed on the manufacture of goods without any necessary reference to their sale. In support of its contention Caltex relied particularly upon passages in Anderson's Pty Ltd v Victoria [1964] HCA 77 ; (1964) 111 CLR 353 ( Anderson's) and Bolton v Madsen [1963] HCA 16 ; (1963) 110 CLR 264 ( Bolton ), which were followed by the Full Court of this Court in Commissioner for A.C.T. Revenue v Kithock Pty Ltd [2000] FCA 1098 ; (2000) 102 FCR 42 ( Kithock ) . In Anderson's , Barwick CJ said at 364: [T]he judicial formulation of the nature of a duty of excise within the meaning of the Constitution has progressed over the intervening years. It has now, however, in my opinion, received definitive exposition by this Court, and, however much other views might have been possible at an earlier stage, it ought now to be taken as settled that the essence of a duty of excise is that it is a tax upon the taking of a step in a process of bringing goods into existence or to a consumable state, or of passing them down the line which reaches from the earliest stage in production to the point of receipt by the consumer. (Emphasis added.) 80 In Kithock [2000] FCA 1098 ; 102 FCR 42 , the Full Court held that a state tax imposed on used or second-hand motor vehicles was not an excise because it was a tax imposed on goods after they had reached the hands of consumers. The Court stated at 48: In [Bolton], the authoritative pronouncement of what is an excise was made by a unanimous High Court constituted by Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ (at 271): "It is now established that for constitutional purposes duties of excise are taxes directly related to goods imposed at some step in their production or distribution before they reach the hands of consumers ." (Emphasis added.) This formulation does not refer to the "ultimate" or "final" or "intermediate" consumer, but is expressed by reference to the plurality of consumers and therefore is a reference to the first consumer. In our opinion, this formulation is the authoritative test which this Court is bound to apply, with the consequence that the tax in question in this case is not an excise. 81 Each of the cases relied on by Caltex involved impugned taxes concerning goods ultimately intended for sale to third party consumers. The question of self-consumption did not arise in any of the cases and I was not referred to any cases in which the conception of a duty of excise had been limited in the manner contended for by Caltex. The Commissioner said that the statement of the Chief Justice in Anderson's 111 CLR 353 was intended to do no more than identify three ways of locating the incidence of an excise duty: the steps of (1) bringing into existence, (2) bringing to a consumable state or (3) passing them down the line to the point of receipt by the consumer. I agree. The passage is consistent with the understanding that an excise may be imposed on discrete steps taking place with respect to goods, without it being necessary that every step take place. The passage does not articulate a principle that excise duties are only those taxes that affect goods destined for consumption by parties other than the original manufacturer or producer. Similarly the emphasis placed by the Full Court in Kithock on the position of consumers was necessary to explain, by way of exclusion, that goods already in circulation amongst consumers cannot be the subject of an excise duty. It is by now clear that consumption taxes are not excises. While it is an essential characteristic of an excise that goods have not yet passed into consumption, I do not accept that it is essential that goods are intended to pass into a market or to be sold to a third party, even though that will be the ordinary occurrence. 140 I agree with the Commissioner that Caltex delivered the residual oils for home consumption for the purposes of the Excise Act . The Excise Act does not refer to delivery to a person but adopts the more ample language of delivery for or into home consumption. While I accept that the typical case of delivery will involve the movement of excisable goods from one person or place to another, the language of the Excise Act is sufficiently broad in my view to apply to the less typical case of consumption by a manufacturer at its own premises. The contention that the Excise Act necessarily requires the physical removal of goods from one place to another seems to me to give the concept of delivery for home consumption a restricted meaning not warranted either by the breadth of the language used or the evident purpose of the legislation, namely to tax manufactured goods consumed in Australia. In my view the use of the words "for" and "into" demonstrates a focus by the Excise Act on the status of excisable goods (that is, their readiness for consumption) rather than whether they have necessarily been transferred between people or places.


case_outcome: applied

case_text: Further, Caltex's argument arrives at a position whereby excise duties would be limited to taxes bearing the characteristics of an indirect tax a tax levied on a person with the expectation that that person will not bear the financial burden of the tax but pass it on to another. The indirectness or otherwise of a tax has been rejected as a necessary element of an excise: see Dennis Hotels Pty Ltd v Victoria [1960] HCA 10 ; (1960) 104 CLR 529 ( Dennis Hotels ) at 583, 585 and 590 (Menzies J); see also Ha 189 CLR at 509. The effect of adopting Caltex's position would be to reject the step of manufacture or production as an occasion in itself for the imposition of an excise and necessitate an inquiry into the subjective intentions of the relevant manufacturer. As I have said the cases demonstrate the stand alone nature of each permissible taxation step and it would not be consistent in my view to introduce a limitation focussed on intention. In this connection, I adopt what Menzies J said in Dennis Hotels 104 CLR at 583: I find nothing in the language of the Constitution which would exclude from the categories of duties of customs or duties of excise, duties to be borne as well as paid by the importer or manufacturer. In other words, unless it be by the use of the words "customs" and "excise" themselves, the Constitution does not adopt the distinction between direct and indirect taxes so that, unless the usage of the words otherwise requires, an import duty on goods imported for use or consumption by the importer would be a customs duty, and a duty upon the production of goods for the producer's own use or consumption would be an excise duty, and both would be beyond the power of the Parliament of a State. In my view a thing capable of description as a manufactured good, and consumed or otherwise applied by its manufacturer in that manufacturer's commercial operations, is capable of being the subject of an excise duty.


case_outcome: cited

case_text: The words must of course be construed in context and by reference to the policies and objectives of the Tariff Act as a whole: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ; (1985) 157 CLR 309 at 315 (Mason J); s 15AA Acts Interpretation Act 1901 (Cth). The context here requires a consideration of the processes involved in petroleum production and the effect those processes have on their subject matter crude oil. I do not see any reason however why the ordinary meaning of "refined" ("freed from impurities"; "purified"; "made purer or of finer quality") should not be given to that word as it appears in the Schedule. This is especially so where the refining of petroleum is provided as an example of the ordinary dictionary meaning (see [90] above). 93 When that is done, it follows in my view that none of the residual oils can be said to be "refined" or "semi-refined", for the following reasons. Firstly, they are not themselves freed from impurities or extraneous matter, nor are they purified or clarified. They have not been in any sense made purer or of finer quality. I do not agree that Caltex's other products should be put to one side when characterising the residual oils. A comparison is useful because those other products (kerosene, jet fuel, diesel fuel) are freed from impurities, in that the heavier, less desirable hydrocarbons and the naturally occurring contaminants in the crude oil are separated from the lighter hydrocarbons that make up those products. Those lighter streams are then treated so as to further reduce the level of contaminants and convert them into saleable products. Whereas those products are made purer or of finer quality, the residual oils are essentially the original impurities themselves. 94 Secondly, while it may be correct to say, as the Commissioner suggests, that the residual oils are not impure when considered as discrete goods, this does not mean that they are or have been purified or made finer in quality. The mere fact that they have been produced in a refinery is not sufficient in my view to give them the quality of a "refined" product. Similarly, I do not consider the fact that they have a commercial use makes them a "refined" product. Commercial value or use does not seem to me particularly relevant to whether something should be properly described as "refined".


case_outcome: considered

case_text: In Attorney-General v The Colonial Sugar Refining Co Ltd (1900) 26 VLR 83 , Madden CJ considered the construction of the term "molasses refined" in Victoria's pre-Federation customs and excise duties legislation. At 84 his Honour said: The evidence shows that the process which "molasses" undergoes at the defendant company's works practically amounts to a straining, by which foreign matters, debris, and rubbish are extracted, and nothing more. It also appears that when sugar is refined this is a preliminary part of the process it passes through, but that in the case of sugar when this is done the sugar is treated with phosphoric acid in order to eliminate certain matters, and the acid is then eliminated by the use of alum. Subsequently the sugar is submitted to other treatment, which is specifically termed in trade "refining," viz., passing it over charcoal beds, so as to eliminate from it substances naturally in it, that is intrinsic as distinguished from extrinsic impurities, and when this is done the sugar is said to be "refined." This passing over charcoal is the test which constitutes refinement as distinguished from straining and other processes. (Emphasis added.) Later, at 85-86 his Honour said: The International Dictionary, which Webster revised, gives "refined" as "freed from impurities or alloy, purified, polished, cultured, delicate, as refined gold, refined language, refined sentiment." Nobody speaks of the refinement of the gold when only separating the quartz and other like substances in which it is found, but which form no inherent part of it, from the metal. One only refines when one comes to retort the gold and the inherent alloys, silver, copper, etc., are extracted from it. Therefore we may take from the meaning in the dictionary that the refining of sugar or molasses stands in the same category as refining of gold, of silver, or of wine. I think that refinement must mean here as sugar is refined, and that the word "refined" would not be properly applied to a mere straining or filtering. 96 Accordingly his Honour held that the molasses, which similarly to the residual oils here was produced as a consequence of the refining of a raw sugar, could not be characterised as "refined" as a result of it being strained to remove extrinsic impurities (frogs, brickbats and nails) that had found their way in during storage. As is evident from his Honour's decision, some form of purification in the sense of removing intrinsic impurities was central to the concept of refinement or "refined" as it was held to have been used in the relevant Victorian legislation. Contrary to the Commissioner's submission, I do not consider that the process of separating the crude oil into different components in and of itself means that each separated component therefore has the character of a "refined" product. This is especially so where the component in question is essentially removed from the whole because of its inferior or impure nature. 97 It follows from what I have said that none of the residual oils fall within item 11(a) of the Schedule and are consequently not dutiable. However, in case I am wrong on this point, I intend to deal with all remaining issues, which were fully argued. This includes whether the Lytton Refinery Fuel Oil is a "liquid" petroleum product. 98 It was common ground that both the Kurnell Residual Slop Oil and CLOR Residual Slop Oil are properly described as liquids and thus would fall within item 11(a) if they are "refined" or "semi-refined" products. Caltex contended however that the Lytton Refinery Fuel Oil was not a liquid, for the reasons set out at [20]. It said that the "standard" reference point for determining whether something was a liquid was a temperature of 20deg.C and pressure of 101.3kPa. As I have found at [27] and [28], the Lytton Refinery Fuel Oil is a solid at those standard temperature and pressure conditions but a liquid when it is produced, stored and then consumed as a burner fuel. 99 I do not accept Caltex's submission. Neither the Schedule to the Tariff Act nor the Tariff Act itself contains any stipulation that the relevant "refined or semi-refined" petroleum products in item 11(a) must be liquid at standard temperature or pressure . By contrast, the Tariff Act does in respect of other goods prescribe certain physical properties by reference to specific temperatures and pressures. For example, s 3(4) prescribes the physical characteristics of "fuel oil", which include a density and a minimum kinematic viscosity measured at 15deg.C and 50deg.C respectively. Moreover, the prescription of a standard temperature and pressure for the determination of a liquid state is used elsewhere in the Excise Act . "Condensate", for example, is defined in s 4 of the Excise Act as either: (a) liquid petroleum; or (b) a substance: (i) that is derived from gas associated with oil production; and (ii) that is liquid at standard temperature and pressure . (Emphasis added.)


case_text: I agree with the Commissioner's construction of par (d). Item 11(I) is divided into three paragraphs of increasing generality. The word "other" is used in a number of places see 11(I)(1)(b), 11(I)(2) ("other, in packages not exceeding 210 litres"), 11(I)(3) ("Other") and 11(I)(3)(d). On an ordinary reading of item 11(I), it seems to me that the word "other" as it is used in each case is intended to describe goods that come within the general item description ("other refined or partly refined petroleum products ..."), other than those that fall within any of the preceding, more specific, paragraphs. In other words, products that do not come within item 11(I)(1) ("recycled petroleum products not elsewhere specified") or 11(I)(2) ("Other, in packages not exceeding 210 litres"), would therefore fall to item 11(I)(3) ("Other"). Similarly, par (d) of item 11(I)(3) seems plainly to apply to any product within item 11(I)(3) that is not covered by pars (a), (b) or (c). A similar construction of the word "other" as it appears in the Customs Tariff Act 1982 (Cth) was adopted in Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 300 (Burchett J). On that construction, item 11(I)(3)(d) applies to any 'refined or partly refined petroleum product' that: • is not covered by either of the preceding paragraphs, 11(I)(1) or 11(I)(2); • is not for use in an internal combustion engine; and • does not contain the required chemical marker. Assuming they are "refined" products, the description just given is applicable to each of the residual oils. 113 Without more, it is difficult to read par (d) in the manner contended for by Caltex. Beyond reference to the extrinsic material, no explanation was offered as to why Parliament would not have clearly identified in the drafting that par (d) was to be limited to non-fuel uses. If "other" means anything, it means other than (a), (b) or (c). Between them, (a), (b) and (c) cover all possible uses. Putting to one side combustion engine fuel (dealt with by (a)), the only remaining discriminant between (b) and (c) on the one hand and (d) on the other is the inclusion of the marker. In my view this accords with precisely what Parliament had in mind when it introduced par (d). It appears from the passages in the extrinsic material quoted above that the marker was to be the "cornerstone" of the regime introduced in 1998. It was given a critical function, in that concessional status, or "free" status for non-fuels, would only apply to products if they contained the marker. This is made clear from the discussion of the proposed item 11(I) in the explanatory memorandum to the 1997 Bill. At page 12, the explanatory memorandum states: The new subitems of item 11 generally have a three tiered excise tariff rate based on the intended use of the products. Products for use otherwise than as fuels and containing the prescribed proportion of marker are dutiable at the rate of "Free". Products for use as a fuel otherwise than in an internal combustion [engine] and containing the prescribed proportion of marker are dutiable at a concessional rate. Products containing no marker and, generally, which are for use in an internal combustion engine are dutiable at the highest rates. 114 Further, the 1997 Act did not include item 11(I)(3)(d), but item 11(I)(1) was as follows: (1) Recycled petroleum products (a) Diesel fuel, and gasoline, on which customs or excise duty has been paid, recovered by a recycling process not being a process of refining Free (b) other (i) containing at least the prescribed proportion of the marker for use otherwise than as a fuel in an internal combustion engine Free (ii) other $0.34697/L (Emphasis added.)


case_text: Caltex submitted that the residual oils were at no time "delivered" for home consumption because the concept of delivery in the Excise Act signifies a transfer of actual or constructive possession from one person to another. In this case, it said, there was no such transfer because it used the residual oils itself at its own premises. Caltex relied on a passage from O'Connor J's judgment in R v Lyon [1906] HCA 17 ; (1906) 3 CLR 770 ( Lyon ), where his Honour in the context of the customs legislation dealt with the provision for customs control over goods "until delivery for home consumption or exportation" (which provision is mirrored in s 61 of the Excise Act ). His Honour stated at 784: The object of that provision, if it were necessary to give any reasons for its enactment, is obvious; if once goods go into home consumption, that is, into circulation, it becomes almost impossible to trace them. 136 According to Caltex, goods such as the residual oils which never leave its premises cannot be said to "go ... into circulation" and cannot therefore have been "delivered" for home consumption. 139 The Commissioner's submissions can be summarised as follows: (a) Upon their manufacture, Caltex did not sell or export the residual oils. It dedicated them for its own use as refinery fuel at the relevant premises. Its dedication of the oils for that use is plain on the evidence, which demonstrates that Caltex maintained and consumed the oils for that purpose. (b) The expression "delivered for home consumption" (ss 61 and 61C) is broad and should not be read down as applying only to delivery of goods between individuals or between places. Nor should "home consumption" be limited by reference to the identity of the actual consumer (i.e. whether the consumer is a third party or the manufacturer him or herself). (c) The concept of delivery for home consumption is critical to s 61(1) because it determines the period of the Commissioner's control over excisable goods. In s 61(1), the concept exists to distinguish between two places for consumption Australia (home) or overseas (export). The use of the preposition "for" in the phrases "delivered for home consumption" and "delivered for exportation", demonstrate the section is concerned more broadly with the place of consumption rather than the transfer of possession between parties. (d) The phrase "go into circulation" used by O'Connor J in Lyon [1906] HCA 17 ; 3 CLR 770 was intended to explain the concept of home consumption not delivered for home consumption. That much is clear from the context in which his Honour used the phrase, being an explanation of the customs authorities' control over goods as a form of security until payment of the required duty. Here, Caltex's premises are in Australia and consumption of the residual oils within those premises is sufficient for the oils to "go into circulation". (e) The residual oils were delivered for home consumption in a manner provided for by the Excise Act . They were delivered pursuant to Caltex's permissions under s 61C and that delivery gave rise to a deemed entry for home consumption: see s 61C(2). Accordingly, Caltex was required as a condition of its permission to include the residual oils in its weekly return and pay the corresponding duty. 141 Another way of considering this is by reference to s 61. Section 61 renders all excisable goods "subject to [the Commissioner's] control until delivered for home consumption or for exportation to a place outside Australia, whichever occurs first". The control residing with the Commissioner is of broad scope and is critical for the protection of the Commonwealth's excise revenue: see Lyon [1906] HCA 17 ; 3 CLR 770 and Collector of Customs (New South Wales) v Southern Shipping Co Ltd [1962] HCA 20 ; (1962) 107 CLR 279 ( Southern Shipping ). The section contemplates that excisable goods will be delivered for either home consumption or exportation. In my view the section evinces a legislative intention to cover the field in respect of all forms of internal (home) consumption and all exports. Historically, excise duties have been understood as running together with and supplementary to the customs duties traditionally imposed on certain goods. In Philip Morris Ltd v Commissioner of Business Franchises (Victoria) [1989] HCA 38 ; (1989) 167 CLR 399 at 427, Mason CJ and Deane J approved the following passage from Quick and Garran's Annotated Constitution of the Australian Commonwealth (1901): The fundamental conception of the term [excise] is that of a tax on articles produced or manufactured in a country. In the taxation of such articles of luxury, as spirits, beer, tobacco, and cigars, it has been the practice to place a certain duty on the importation of these articles and a corresponding or reduced duty on similar articles produced or manufactured in the country; and this is the sense in which excise duties have been understood in the Australian colonies, and in which the expression was intended to be used in the Constitution of the Commonwealth. 143 Contrary to Caltex's submissions, I do not accept that the reference in Lyon [1906] HCA 17 ; 3 CLR 770 to goods going into circulation necessitates a more restricted construction of "delivered for home consumption". Justice O'Connor's reference to going into circulation was used to explain how effective security over goods is lost once they have entered home consumption. His Honour was not there describing the concept of delivery nor, more importantly, intending to limit its scope. He was drawing attention to the policy of the customs legislation and the importance of the customs authorities' having a form of security over imported goods to ensure the payment of duty. I agree with the Commissioner that Caltex's dedication of the residual oils for consumption by it at its premises is sufficient, in the sense O'Connor J had in mind, for the oils to "go into circulation". 144 Similarly I reject Caltex's submission that the words "from a place" in s 61C mean that excisable goods must be removed from that place before they can be considered "delivered" for home consumption. Again, while Caltex's construction accords with what will occur in the typical case, the section is not limited to that situation. The section also accommodates and is consistent with a delivery for home consumption constituted by a use of the relevant goods at that place. Furthermore, the reference to a place in s 61C seems to me to be more concerned with the manner in which the Commissioner's control can be effectively exercised. Section 61C follows ss 61 , 61A and 61B , each of which concern itself with the Commissioner's control and the granting of permissions. In the case of s 61C , it seems to me that it is a necessary or at least convenient measure in permitting deliveries into home consumption without formal entries, that such activity is authorised only in respect of certain specified premises at which the Commissioner's control and supervision can be effectively exercised. 145 For these reasons, I consider that Caltex delivered the residual oils for home consumption pursuant to its s 61C permissions. Accordingly, if I am wrong on the "refined" point, then Caltex was obliged to account for the residual oils in its weekly returns and is liable to pay the requisite duty on them. 154 In relation to (b), Caltex's submission has the effect that s 60 could only operate where excisable goods have not in fact been delivered for home consumption. The Commissioner submitted that s 60 applies whether or not goods have been delivered for home consumption. He emphasised that the purpose of the Commissioner's control over excisable goods is to ensure that duty is properly paid (relying on Lyon [1906] HCA 17 ; 3 CLR 770 and Southern Shipping [1962] HCA 20 ; 107 CLR 279) and the obligations imposed by s 60 are designed to ensure that the goods do not find their way into home consumption without proper payment (relying on Sidebottom [2000] FCA 607 ; 98 FCR 579). More particularly the Commissioner said that s 60 is aimed directly at the unauthorised relinquishment of possession, which would include delivering goods for home consumption in a manner that was not authorised, principally where there is no payment of duty.


case_outcome: followed

case_text: As an extension of this argument, Caltex said that s 61 which renders excisable goods subject to the Commissioner's control "until delivered for home consumption or exportation" demonstrates that "delivery" occurs only upon an entry pursuant to s 58 or a "deemed delivery", as it put it, pursuant to s 61C. It referred to the fact that s 61 contains penalty provisions which prohibit interference with goods that are subject to control, and said that delivery for home consumption, which brings that control to an end, can only occur in a manner provided for by the Excise Act . Reliance was placed on Moama Refinery v Chief Executive Officer of Customs [2001] FCA 1287 ; (2001) 115 FCR 205 ( Moama ) where Ryan J referred to the regime in ss 58 , 59 , 60 and 61 and stated at [22]: There can be no suggestion, on the facts of the present case, that the subject fuel had ever been "entered" for home consumption as contemplated by s 58(1)(a) of the Act. Without such entry, or authorisation, they could not have been "delivered" for home consumption and, accordingly, by force of s 61(1) they remained subject to Customs control. 138 As the final step in its argument, Caltex submitted that s 61C (there here being no "entry" of the residual oils) makes it clear that excisable goods can only be delivered for home consumption upon being removed from the manufacturer's relevant premises. This was said to be because s 61C permits a manufacturer to "deliver for home consumption from a place specified in the permission" (emphasis added). 161 In my view there was no doubt about the whereabouts of the residual oils or whether they had been, at least on the Commissioner's construction of s 60(1)(a) , kept safely. This is not a case where the location of the goods (and therefore whether they had gone into home consumption) was unknown (cf. Moama [2001] FCA 1287 ; 115 FCR 205) , or a case where the Commissioner only had "evidence which might lead him to form the opinion that excisable goods were not kept safely" (see Sidebottom [2000] FCA 607 ; 98 FCR 579 at [16] ). The facts here were clear the residual oils had been consumed by Caltex at its premises without the payment of any duty. 165 A similar situation arose in Moama [2001] FCA 1287 ; 115 FCR 205. The Commissioner in that case issued a demand on the basis of s 60(1)(b) only, but sought at the hearing, as an alternative, to validate the demand in reliance on s 60(1)(a). After referring to Revlon Manufacturing Limited v Commissioner of Taxation (1995) 63 FCR 535 and Federal Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105 , Ryan J found that the demand could be justified on the basis of s 60(1)(a) , even if s 60(1)(b) had not been available. His Honour stated at [40]: In my view, the amenability of Moama to the issue of a demand under s 60(1) did not depend on the exercise of any power by Customs (other than the issuing of the demand itself). It arose, as Wilcox J said in Revlon out of the operation of the Act itself. There was, accordingly, no scope for Moama to be under any misapprehension as to the basis upon which it was asked to pay duty on the subject fuel.


case_text: Another way of considering this is by reference to s 61. Section 61 renders all excisable goods "subject to [the Commissioner's] control until delivered for home consumption or for exportation to a place outside Australia, whichever occurs first". The control residing with the Commissioner is of broad scope and is critical for the protection of the Commonwealth's excise revenue: see Lyon [1906] HCA 17 ; 3 CLR 770 and Collector of Customs (New South Wales) v Southern Shipping Co Ltd [1962] HCA 20 ; (1962) 107 CLR 279 ( Southern Shipping ). The section contemplates that excisable goods will be delivered for either home consumption or exportation. In my view the section evinces a legislative intention to cover the field in respect of all forms of internal (home) consumption and all exports. Historically, excise duties have been understood as running together with and supplementary to the customs duties traditionally imposed on certain goods. In Philip Morris Ltd v Commissioner of Business Franchises (Victoria) [1989] HCA 38 ; (1989) 167 CLR 399 at 427, Mason CJ and Deane J approved the following passage from Quick and Garran's Annotated Constitution of the Australian Commonwealth (1901): The fundamental conception of the term [excise] is that of a tax on articles produced or manufactured in a country. In the taxation of such articles of luxury, as spirits, beer, tobacco, and cigars, it has been the practice to place a certain duty on the importation of these articles and a corresponding or reduced duty on similar articles produced or manufactured in the country; and this is the sense in which excise duties have been understood in the Australian colonies, and in which the expression was intended to be used in the Constitution of the Commonwealth. 147 This however is to misconstrue the section and its intended operation. Liability under s 60 is "collateral and not substitutional" for the liability to pay excise duty that may be incurred under other provisions of the Excise Act : see Southern Shipping 107 CLR at 288 (Dixon CJ); see also s 60(4) of the Excise Act . Section 60 is an alternative recovery mechanism open to the Commissioner in appropriate cases where the circumstances set out therein are met. Subject to what I say below (at [158]-[162]), it was open to the Commissioner to rely on s 60 in making the request, regardless of whether he also maintained an alternative position that Caltex was liable for excise duty having delivered the residual oils for home consumption. 148 While I was not taken to the parties' correspondence on this point in detail, I note that the Commissioner both prior to (in its Advice) and after making the request (in its objection decision) maintained a claim that Caltex had delivered the residual oils for home consumption for the purposes of s 61C. In those circumstances, I do not consider that the request amounted to any form of concession that the Commissioner accepted that the residual oils had not been delivered. In any event, a proper construction of s 60 in my view would permit the Commissioner to rely on s 60 even where the relevant excisable goods have been "delivered for home consumption", where such delivery is not accompanied by the payment of duty. For reasons I shall explain below in dealing with the s 60 point, I consider that s 60 is capable of application to excisable goods that (1) have been subject to the Commissioner's control but (2) have not been kept safely by virtue of their delivery into home consumption without the payment of duty. 149 I now turn to the Commissioner's alternative basis for Caltex's liability under the s 60 demand. The Commissioner relied on both ss 60(1)(a) and (b) in the demand. The demand stated: [Caltex] owes the Excise Collector of the Australian Taxation Office ... the amount of $48,676,126.13, being the amount of the debt described in the Schedule. 152 Caltex has sought to have the demand set aside for invalidity, on the following grounds: (a) The residual oils are not "excisable goods" and s 60 has no application to them. (b) Section 60 applies only to excisable goods that are "subject to the [Commissioner's] control". If as the Commissioner contended the residual oils were delivered for home consumption, then they were thereupon no longer subject to the Commissioner's control and s 60 does not apply. (c) Caltex did not "fail to keep [the residual oils] safely". The safety with which s 60(1)(a) is concerned is that the goods do not find their way into home consumption without the payment of duty. It is not directed at the protection of goods from damage or destruction (relying on Southern Shipping 107 CLR at 296 (Taylor J) and 299 (Menzies J)). As the residual oils were "destroyed" by Caltex and did not and were never intended to find their way into home consumption, there was no failure to keep them safely for the purposes of s 60(1)(a). (d) The Commissioner was not entitled to make a request pursuant to s 60(1)(b) nor to rely on that paragraph in the demand as a basis for liability. Section 60(1)(b) may only be invoked when there is doubt about the whereabouts of goods or doubt as to whether they have been kept safely (relying on Sidebottom v Giuliano [2000] FCA 607 ; (2000) 98 FCR 579 ( Sidebottom )). There was no doubt as to whether Caltex had failed to keep the residual oils safely. The Commissioner was aware that the residual oils had been burnt at Caltex's refineries. In particular, he acknowledged that the residual oils had been "used to generate energy within Caltex's refineries" in the purported request he made under s 60(1)(b). (e) Even if the Commissioner was entitled to make the s 60(1)(b) request, Caltex properly accounted for the residual oils by explaining that they had been used to generate heat, which thereby demonstrated they had not gone into home consumption. (f) The demand is invalid because it claimed payment of a "debt". Liability under s 60(1) only arises upon the due making of a valid demand. Accordingly Caltex could not have owed the amount demanded prior to the making of the demand and its description as a debt renders the demand invalid. 154 In relation to (b), Caltex's submission has the effect that s 60 could only operate where excisable goods have not in fact been delivered for home consumption. The Commissioner submitted that s 60 applies whether or not goods have been delivered for home consumption. He emphasised that the purpose of the Commissioner's control over excisable goods is to ensure that duty is properly paid (relying on Lyon [1906] HCA 17 ; 3 CLR 770 and Southern Shipping [1962] HCA 20 ; 107 CLR 279) and the obligations imposed by s 60 are designed to ensure that the goods do not find their way into home consumption without proper payment (relying on Sidebottom [2000] FCA 607 ; 98 FCR 579). More particularly the Commissioner said that s 60 is aimed directly at the unauthorised relinquishment of possession, which would include delivering goods for home consumption in a manner that was not authorised, principally where there is no payment of duty. 157 In relation to the failure to keep safely point at (c), the Commissioner relied on the decision of Finkelstein J in Sidebottom [2000] FCA 607 ; 98 FCR 579 and his Honour's discussion of the purposes of s 60 as explained by the High Court in Southern Shipping [1962] HCA 20 ; 107 CLR 279. What is clear from each of those cases is that s 60 imposes an essentially absolute duty to keep goods safely and to ensure they do not find their way into home consumption without the payment of duty. Where that does occur, the goods will have found their way into home consumption "irregularly", that is, in a manner not authorised by the Excise Act , and s 60 will apply in order that the revenue might be protected. The Commissioner said that the residual oils found their way into home consumption irregularly when Caltex consumed them without duty having been paid. I agree. As I said earlier, Caltex's consumption of the residual oils at its refineries amounted to "home consumption". It follows that Caltex's dedication of the residual oils as refinery fuel oil, without paying excise duty, and subsequent consumption of them by burning them, means that they found their way into home consumption irregularly. Caltex's consumption of the residual oils in this manner (by burning and thus using them up or "destroying" them) was therefore a failure to keep them safely within s 60(1)(a). As Dixon CJ said in Southern Shipping 107 CLR at 287, the safe keeping comprehended by s 60(1)(a) is the keeping safe from loss or destruction, because "the provision is pointed at the loss of goods involving the loss of excise duty". Caltex relied on the judgments of Taylor J (at 296) and Menzies J (at 299) in Southern Shipping [1962] HCA 20 ; 107 CLR 279 and their Honours' references to damage or destruction. However, their observations were directed not to a case such as the present (where the "destruction" is the consumption of the residual oils as a fuel) but to a rejection of the proposition that the section imposes a duty of care not to permit goods to be damaged or destroyed. 158 I now turn to Caltex's submission at (d). The Commissioner acknowledged that it was entitled to request an account only where the safety of the relevant goods is something less than an "undoubted" fact: see Southern Shipping 107 CLR at 305 (Owen J); Sidebottom [2000] FCA 607 ; 98 FCR 579 at [14] (Finkelstein J). It said that the section was directed to an account that shows either: • an unauthorised relinquishment of possession; • despite an unauthorised loss of possession, that the goods have not gone into home consumption without payment of duty; or • despite a failure to keep them safely, the Commissioner's control over the goods is still effective (see Southern Shipping 107 CLR at 299 (Menzies J)) 163 If I am wrong in that conclusion, I would reject Caltex's submission at (e) above that it had accounted for the residual oils. Its statement that residual oils were used as fuel in generating the required heat for the refineries was an accounting for their consumption, not an accounting "for the goods". It did not demonstrate that the residual oils had been dealt with in a manner authorised by the Excise Act or that, despite an unauthorised relinquishment of possession, the goods had not got into home consumption without duty being paid, or that despite a failure to keep them safely, the Commissioner's control was still effective over the residual oils: see Southern Shipping 107 CLR at 299 (Menzies J). The purported account simply recited the facts, which showed that the residual oils had not been kept safely within the meaning of s 60(1)(a). It was therefore reasonable for the Commissioner not to be satisfied that the goods had been accounted for. 164 As I have found the Commissioner was not entitled to make a request under s 60(1)(b) , a question is raised as to the effect of this on the Commissioner's demand. In the demand, the Commissioner relied on Caltex's failure to keep the goods safely "and/or" its failure to account upon request. For the reasons I have given, it was not open to the Commissioner to rely on a failure to account under s 60(1)(b) to support the demand. Neither party made any submissions as to where this left the demand.


case_text: Another way of considering this is by reference to s 61. Section 61 renders all excisable goods "subject to [the Commissioner's] control until delivered for home consumption or for exportation to a place outside Australia, whichever occurs first". The control residing with the Commissioner is of broad scope and is critical for the protection of the Commonwealth's excise revenue: see Lyon [1906] HCA 17 ; 3 CLR 770 and Collector of Customs (New South Wales) v Southern Shipping Co Ltd [1962] HCA 20 ; (1962) 107 CLR 279 ( Southern Shipping ). The section contemplates that excisable goods will be delivered for either home consumption or exportation. In my view the section evinces a legislative intention to cover the field in respect of all forms of internal (home) consumption and all exports. Historically, excise duties have been understood as running together with and supplementary to the customs duties traditionally imposed on certain goods. In Philip Morris Ltd v Commissioner of Business Franchises (Victoria) [1989] HCA 38 ; (1989) 167 CLR 399 at 427, Mason CJ and Deane J approved the following passage from Quick and Garran's Annotated Constitution of the Australian Commonwealth (1901): The fundamental conception of the term [excise] is that of a tax on articles produced or manufactured in a country. In the taxation of such articles of luxury, as spirits, beer, tobacco, and cigars, it has been the practice to place a certain duty on the importation of these articles and a corresponding or reduced duty on similar articles produced or manufactured in the country; and this is the sense in which excise duties have been understood in the Australian colonies, and in which the expression was intended to be used in the Constitution of the Commonwealth.


case_text: Caltex has sought to have the demand set aside for invalidity, on the following grounds: (a) The residual oils are not "excisable goods" and s 60 has no application to them. (b) Section 60 applies only to excisable goods that are "subject to the [Commissioner's] control". If as the Commissioner contended the residual oils were delivered for home consumption, then they were thereupon no longer subject to the Commissioner's control and s 60 does not apply. (c) Caltex did not "fail to keep [the residual oils] safely". The safety with which s 60(1)(a) is concerned is that the goods do not find their way into home consumption without the payment of duty. It is not directed at the protection of goods from damage or destruction (relying on Southern Shipping 107 CLR at 296 (Taylor J) and 299 (Menzies J)). As the residual oils were "destroyed" by Caltex and did not and were never intended to find their way into home consumption, there was no failure to keep them safely for the purposes of s 60(1)(a). (d) The Commissioner was not entitled to make a request pursuant to s 60(1)(b) nor to rely on that paragraph in the demand as a basis for liability. Section 60(1)(b) may only be invoked when there is doubt about the whereabouts of goods or doubt as to whether they have been kept safely (relying on Sidebottom v Giuliano [2000] FCA 607 ; (2000) 98 FCR 579 ( Sidebottom )). There was no doubt as to whether Caltex had failed to keep the residual oils safely. The Commissioner was aware that the residual oils had been burnt at Caltex's refineries. In particular, he acknowledged that the residual oils had been "used to generate energy within Caltex's refineries" in the purported request he made under s 60(1)(b). (e) Even if the Commissioner was entitled to make the s 60(1)(b) request, Caltex properly accounted for the residual oils by explaining that they had been used to generate heat, which thereby demonstrated they had not gone into home consumption. (f) The demand is invalid because it claimed payment of a "debt". Liability under s 60(1) only arises upon the due making of a valid demand. Accordingly Caltex could not have owed the amount demanded prior to the making of the demand and its description as a debt renders the demand invalid. 154 In relation to (b), Caltex's submission has the effect that s 60 could only operate where excisable goods have not in fact been delivered for home consumption. The Commissioner submitted that s 60 applies whether or not goods have been delivered for home consumption. He emphasised that the purpose of the Commissioner's control over excisable goods is to ensure that duty is properly paid (relying on Lyon [1906] HCA 17 ; 3 CLR 770 and Southern Shipping [1962] HCA 20 ; 107 CLR 279) and the obligations imposed by s 60 are designed to ensure that the goods do not find their way into home consumption without proper payment (relying on Sidebottom [2000] FCA 607 ; 98 FCR 579). More particularly the Commissioner said that s 60 is aimed directly at the unauthorised relinquishment of possession, which would include delivering goods for home consumption in a manner that was not authorised, principally where there is no payment of duty. 157 In relation to the failure to keep safely point at (c), the Commissioner relied on the decision of Finkelstein J in Sidebottom [2000] FCA 607 ; 98 FCR 579 and his Honour's discussion of the purposes of s 60 as explained by the High Court in Southern Shipping [1962] HCA 20 ; 107 CLR 279. What is clear from each of those cases is that s 60 imposes an essentially absolute duty to keep goods safely and to ensure they do not find their way into home consumption without the payment of duty. Where that does occur, the goods will have found their way into home consumption "irregularly", that is, in a manner not authorised by the Excise Act , and s 60 will apply in order that the revenue might be protected. The Commissioner said that the residual oils found their way into home consumption irregularly when Caltex consumed them without duty having been paid. I agree. As I said earlier, Caltex's consumption of the residual oils at its refineries amounted to "home consumption". It follows that Caltex's dedication of the residual oils as refinery fuel oil, without paying excise duty, and subsequent consumption of them by burning them, means that they found their way into home consumption irregularly. Caltex's consumption of the residual oils in this manner (by burning and thus using them up or "destroying" them) was therefore a failure to keep them safely within s 60(1)(a). As Dixon CJ said in Southern Shipping 107 CLR at 287, the safe keeping comprehended by s 60(1)(a) is the keeping safe from loss or destruction, because "the provision is pointed at the loss of goods involving the loss of excise duty". Caltex relied on the judgments of Taylor J (at 296) and Menzies J (at 299) in Southern Shipping [1962] HCA 20 ; 107 CLR 279 and their Honours' references to damage or destruction. However, their observations were directed not to a case such as the present (where the "destruction" is the consumption of the residual oils as a fuel) but to a rejection of the proposition that the section imposes a duty of care not to permit goods to be damaged or destroyed. 158 I now turn to Caltex's submission at (d). The Commissioner acknowledged that it was entitled to request an account only where the safety of the relevant goods is something less than an "undoubted" fact: see Southern Shipping 107 CLR at 305 (Owen J); Sidebottom [2000] FCA 607 ; 98 FCR 579 at [14] (Finkelstein J). It said that the section was directed to an account that shows either: • an unauthorised relinquishment of possession; • despite an unauthorised loss of possession, that the goods have not gone into home consumption without payment of duty; or • despite a failure to keep them safely, the Commissioner's control over the goods is still effective (see Southern Shipping 107 CLR at 299 (Menzies J)) 159 If it were an undoubted fact that Caltex had failed to keep the residual oils safely because it burnt them, then s 60(1)(b) would not be available to the Commissioner: Sidebottom [2000] FCA 607 ; 98 FCR 579. Conversely, if the position with respect to the residual oils was something less than an undoubted fact, it was open to the Commissioner to invoke s 60(1)(b). 160 It seems to me that it was common ground from the outset that Caltex had consumed all of the residual oils and that no duty had been paid in respect of them. The premise of the Commissioner's conclusion in the Advice that the residual oils had been delivered for home consumption and had not been accounted for (the latter of which, curiously, was not based on any request to account at that stage), was that the residual oils had been burnt by Caltex as a fuel oil. Moreover, in the Commissioner's request under s 60(1)(b) itself, he acknowledged that the residual oils had already been burnt. The only thing that could possibly have remained in any doubt was whether Caltex had paid duty, but that was not the case. The Commissioner had already stated in the Advice that "the [residual oil] that you are manufacturing is no longer present within the licensed premises and duty has not been paid". 161 In my view there was no doubt about the whereabouts of the residual oils or whether they had been, at least on the Commissioner's construction of s 60(1)(a) , kept safely. This is not a case where the location of the goods (and therefore whether they had gone into home consumption) was unknown (cf. Moama [2001] FCA 1287 ; 115 FCR 205) , or a case where the Commissioner only had "evidence which might lead him to form the opinion that excisable goods were not kept safely" (see Sidebottom [2000] FCA 607 ; 98 FCR 579 at [16] ). The facts here were clear the residual oils had been consumed by Caltex at its premises without the payment of any duty. 162 Accordingly I do not consider that the Commissioner was entitled to make the request pursuant to s 60(1)(b): see Sidebottom [2000] FCA 607 ; 98 FCR 579 at [14] .


case_text: I agree with Ryan J's analysis of s 60(1). This is not a case where the Commissioner would seek to justify a demand by reference to some different, previously unraised, provision (cf. Danmark Pty Ltd v Commissioner of Taxation (Cth) (1944) 7 ATD 333 ; Magna Stic Magnetic Signs Pty Ltd v Commissioner of Taxation (Cth) (1989) 20 ATR 1237). This is a case where the Commissioner has relied, albeit erroneously in part, on two grounds under the same provision. The taxpayer was not under any misapprehension as to the alleged basis for its liability and in my view the demand was valid to the extent that it relied on s 60(1)(a) as a basis for Caltex's liability.


case_title: Magna Stic Magnetic Signs Pty Ltd v Commissioner of Taxation (Cth) (1989) 20 ATR 1237


case_text: Assuming they fall within the Schedule, the impost in this case is levied directly on the residual oils as the "subjects of manufacture" and affects them as commodities in the hands of Caltex. The residual oils are of use to Caltex and serve an economic purpose. Without them Caltex would need to acquire fuel oil from an alternative source at higher cost. The impost is not levied upon the consumption of the residual oils by Caltex. Nor is it a tax on the ownership of the residual oils. It is an excise in the most obvious sense; a tax upon the step of manufacturing or producing a defined good. In my view, to accept the limitation contended for by Caltex would be counter to the trend of the High Court's decision making from the early decision in Peterswald v Bartley [1904] HCA 21 ; (1904) 1 CLR 497 through to Ha [1997] HCA 34 ; 189 CLR 465 , which has been to enlarge the field of permissible steps of taxation in the context of duties of excise.


case_text: A similar situation arose in Moama [2001] FCA 1287 ; 115 FCR 205. The Commissioner in that case issued a demand on the basis of s 60(1)(b) only, but sought at the hearing, as an alternative, to validate the demand in reliance on s 60(1)(a). After referring to Revlon Manufacturing Limited v Commissioner of Taxation (1995) 63 FCR 535 and Federal Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105 , Ryan J found that the demand could be justified on the basis of s 60(1)(a) , even if s 60(1)(b) had not been available. His Honour stated at [40]: In my view, the amenability of Moama to the issue of a demand under s 60(1) did not depend on the exercise of any power by Customs (other than the issuing of the demand itself). It arose, as Wilcox J said in Revlon out of the operation of the Act itself. There was, accordingly, no scope for Moama to be under any misapprehension as to the basis upon which it was asked to pay duty on the subject fuel.


case_title: Federal Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105


case_title: Langston v Langston (1834) 2 Cl & Fin 194 ; 6 ER 1128

case_text: In any event, even if there is a choice to be made between a construction that gives effect to the demand and one which renders it invalid, I consider that the former should be chosen. Where two constructions of an instrument are equally plausible, upon one of which the instrument is valid, and upon another of which it is invalid, the court should lean towards that construction which validates the instrument: see Langston v Langston [1834] EngR 190 ; (1834) 2 Cl & Fin 194 ; 6 ER 1128 at 1147; In Re Solomon; Solomon v Solomon [1946] VLR 115 at 120-121; Multiplex Constructions (UK) Limited v Honeywell Control Systems Limited (No. 2) [2007] EWHC 447 at [57].


case_title: In Re Solomon; Solomon v Solomon [1946] VLR 115


case_title: Multiplex Constructions (UK) Limited v Honeywell Control Systems Limited (No. 2) [2007] EWHC 447


case_text: Further, it seems to me doubtful that invalidity would necessarily follow if Caltex's construction of the demand were adopted. By analogy with the approach taken in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at [93] , I would ask whether it was a purpose of s 60(1) that to wrongly describe "an amount equal to the amount of the Excise duty which would have been payable ..." as a debt, when it is quite clear what is being demanded and why, should result in invalidity. Caltex did not advance any argument as to why such an error should result in invalidity, whether on a Project Blue Sky approach or otherwise. 172 As I have found the residual oils not to be "refined" or "semi-refined" products, they are not subject to excise duty under item 11 of the Tariff Act. Accordingly the Commissioner's objection decision the subject of the tax appeal must be set aside, together with the demand made by the Commissioner pursuant to s 60(1) of the Excise Act . The Commissioner should pay Caltex's costs of the tax appeal. 173 The s 39B proceeding is in substance dealt with by the result of the tax appeal. But for the agreement referred to at [44] it would have been necessary to fashion orders dealing with the numerous declarations contained in the application. The applicant would have obtained ten of the declarations. The Commissioner would have successfully resisted five other declarations. In the circumstances, the appropriate order is that the proceeding be dismissed and the applicant recover 66 per cent of its costs. I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 19 December 2008 Counsel for the Applicant: JW de Wijn QC and FJ Alpins Solicitor for the Applicant: Mallesons Counsel for the Respondent: P Hanks QC, P Sest and R Sallis Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1, 2 and 3 September 2008 Date of Judgment: 19 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1951.html


case_text: In my view, the Federal Magistrate was entitled to reach the view that he did, and the finding was made after consideration of the cross-examination of the appellant and should not be disturbed: see generally, Abalos v Australian Postal Commission [1990] HCA 47 ; (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission [1993] HCA 78 ; (1993) 177 CLR 472 ; Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [26] .


case_text: I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238.


case_title: Devries v Australian National Railways Commission [1993] HCA 78 ; (1993) 177 CLR 472


case_text: His Honour also distinguished this case from that of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In Bhardwaj , under the former wording of s 360 of the Act (the Migration Review Tribunal equivalent of s 425) , the Tribunal was held to be in jurisdictional error for failing to consider a request for an adjournment because of the applicant's ill health and then proceeding to make its determination on the review application. 12 His Honour further found that while some issues were not raised in the s 425A notice, this did not vitiate that notice or demonstrate jurisdictional error on the part of the Tribunal. To the extent that the appellant submitted that some notification by the Tribunal was required in respect of issues which were not decided adversely to her by the delegate, the appellant misconceived the Tribunal's decision; the Tribunal made no findings on any matters other than the appellant's nationality. Thus, it could not be concluded that anything which the delegate had considered favourably for the appellant was decided differently by the Tribunal as, relevantly, no findings were made by the Tribunal. His Honour found that, in this case, the Tribunal exercised its discretion by not rescheduling the hearing and by proceeding to make its decision. When considering how to exercise its discretion under s 426A , the Tribunal considered the appellant's letter advising the Tribunal of her alleged indisposition, but found it unconvincing. In light of that conclusion, his Honour found that the Tribunal did not accept that the appellant had demonstrated an inability to attend the hearing, and exercised its discretion not to reschedule the hearing. 13 As I have indicated, there was a positive finding by the Federal Magistrate, after hearing evidence, that the appellant was too unwell to attend the Tribunal hearing. 14 Prior to making this finding his Honour set out the details of the appellant's account as follows at [22]-[23]: 22. The second matter arising in respect of this asserted ground of review turns on the applicant's claim to be too unwell to attend the Tribunal hearing listed for 9 May 2007. Her evidence to the Court was that she had food poisoning which manifested as severe diarrhoea and exhaustion. She said that she was staying at a friend's home but the friend had gone away with her boyfriend leaving the applicant alone and speaking no English. She said that she was unable to make contact with her friend or with another friend and was too ill to leave the flat. The applicant said that she was able to speak to the second friend the next day and asked her to make contact with the Tribunal to advise them that she had been ill and to ask for a postponement of the hearing. The applicant said that it was not easy to make contact with this friend who would not always ring her back promptly and that a couple of weeks after this conversation her friend told her that contact had been made with the Tribunal, although the applicant was not told what her friend had said to the Tribunal. 23. The applicant was cross-examined closely as to how her illness could be so bad as to prevent her from attending a hearing which she conceded was very important and might save her life. She insisted that she was severely incapacitated by the food poisoning and spent the day running between the bedroom and the bathroom and not being able to communicate with anybody because of her lack of English. It should also be noted that the applicant did not provide to the Tribunal or to the Court a medical certificate confirming her illness on the day. However, it should also be observed that her counsel had been unaware until the night before the hearing that her medical condition on the day of the Tribunal hearing was a matter of vital significance in these proceedings. The applicant had not explained this to him even though she had given evidence on the subject at a show cause hearing on 19 November 2007. 15 In the amended notice of appeal filed on 18 August 2008, the appellant essentially contended that his Honour erred in law by: • not following the Full Court decision in SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 when construing the obligation of the Tribunal under s 425 of the Act to provide a 'real and meaningful' invitation, whether or not the Tribunal was aware of the circumstances that would defeat that obligation; • upholding the Tribunal's decision in circumstances where his Honour sought to distinguish the High Court decision in Bhardwaj 209 CLR 597 on the basis that the s 360 invitation (which is equivalent to a s 425 invitation) now provides different rights; and • upholding the second respondent's decision where the Tribunal committed jurisdictional error in circumstances where its exercise of discretion under s 426A of the Act miscarried by reason of its failure to: (i) give the appellant a real and meaningful invitation under s 425(1) of the Act; (ii) take into account a relevant consideration (that is, regarding the appellant's letter dated 30 May 2007); and (iii) explain why, without medical evidence, there was no 'good reason' for seeking an adjournment. 22 I have come to the view that this case can be determined by a consideration of the facts, assuming in favour of the appellant the applicability and correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 and applicability of Bhardwaj 209 CLR 597. 37 The above reasoning disposes of all the contentions of the appellant, assuming the Federal Magistrate fell into error in not following and applying SCAR [2003] FCAFC 126 ; 128 FCR 553 , and in distinguishing Bhardwaj 209 CLR 597.


case_text: His Honour accepted that the appellant had been too unwell to attend the Tribunal hearing. However, his Honour found that this did not amount to a breach of s 425 of the Act. In relation to whether the appellant had been afforded a 'real and meaningful' invitation to the Tribunal hearing, his Honour found that the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 did not help the appellant, stating that (at [26]): In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 , the Full Court of the Federal Court held that s 425 required the Tribunal to extend an objectively meaningful invitation to the [appellant] to attend the Tribunal's hearing which could not be achieved if the respondent was not in a fit state to represent himself at the hearing. The court said that s 425 imposed an objective requirement on the Tribunal to provide a "real and meaningful" invitation whether or not the Tribunal was aware of the actual circumstances which would defeat that obligation. However, in SCAR, the s 425 invitation had been issued in the period prior to the commencement of s 422B and its codification of the natural justice hearing rule for proceedings before the Tribunal. In relation to s 422B , and its equivalent provisions in other parts of the Act, the Full Court of the Federal Court said in Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCA 61 ; (2006) 151 FCR 214 at 225 [66] , that such provisions have the effect that those sections found in div 4 of pt 7 of the Act provide a comprehensive procedural code containing detailed provisions for procedural fairness which exclude the common law natural justice hearing rule. The application of that reasoning to s 422B was expressly adopted by the same full court bench in SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62. 15 In the amended notice of appeal filed on 18 August 2008, the appellant essentially contended that his Honour erred in law by: • not following the Full Court decision in SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 when construing the obligation of the Tribunal under s 425 of the Act to provide a 'real and meaningful' invitation, whether or not the Tribunal was aware of the circumstances that would defeat that obligation; • upholding the Tribunal's decision in circumstances where his Honour sought to distinguish the High Court decision in Bhardwaj 209 CLR 597 on the basis that the s 360 invitation (which is equivalent to a s 425 invitation) now provides different rights; and • upholding the second respondent's decision where the Tribunal committed jurisdictional error in circumstances where its exercise of discretion under s 426A of the Act miscarried by reason of its failure to: (i) give the appellant a real and meaningful invitation under s 425(1) of the Act; (ii) take into account a relevant consideration (that is, regarding the appellant's letter dated 30 May 2007); and (iii) explain why, without medical evidence, there was no 'good reason' for seeking an adjournment. 16 At the outset, I turn to consider the first respondents application for leave to rely upon a proposed notice of contention dated 31 July 2008 as follows: To the extent (if any) that the Federal Magistrates Court accepted that the Appellant was unfit to attend the hearing of the Refugee Review Tribunal on 9 May 2007 for the purposes of Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 , such a finding was not open in the absence of medical evidence to that effect. 17 It is important to appreciate that the appellant's severe incapacitation and illness were, in the circumstances, adequately described by the appellant, whatever the cause or description of the medical condition involved. The Federal Magistrate obviously accepted the symptoms were such that the appellant could not attend the hearing. 22 I have come to the view that this case can be determined by a consideration of the facts, assuming in favour of the appellant the applicability and correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 and applicability of Bhardwaj 209 CLR 597. 23 I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238. 25 Recently, Gray J (with whom Gyles J agreed) in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 confirmed that, despite the codification of procedural fairness rules by virtue of s 422B of the Act, the process rights contained in Div 4 (which include s 425 of the Act) remain important to the exercise of the Tribunal's substantive powers. His Honour said at [5]: Section 425 , like other provisions found in Div 4 of Pt VII , represents Parliament's expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness. If this proposition were ever doubted, it is now confirmed by the presence of s 422B , enacted subsequently to most of the other provisions in Div 4. Like the rules of procedural fairness in other contexts, the rights given to an applicant by Div 4 are rights relating to the process by which decisions are made, rather than to the substantive content of those decisions. To say this, however, is not to diminish the importance of those rights. It has long been recognised that a statutory power, the exercise of which may affect adversely a person's interests, is impliedly subject to a requirement that the decision-maker afford procedural fairness to that person. The fact that, in the context of the Tribunal's task of reviewing decisions to refuse protection visas, Parliament has chosen to make the exercise of the Tribunal's substantive powers depend expressly upon the process rights contained in Div 4, and to spell out for that purpose what constitutes procedural fairness, does not diminish the importance of those process rights. Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1) , will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [37] . 37 The above reasoning disposes of all the contentions of the appellant, assuming the Federal Magistrate fell into error in not following and applying SCAR [2003] FCAFC 126 ; 128 FCR 553 , and in distinguishing Bhardwaj 209 CLR 597.


case_title: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365


case_text: I assume that any requirement for an invitation be 'real and meaningful' is a necessary precondition to the exercise of the Tribunal's decision making power. The content of the s 425 invitation was explained by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572 , 585 at [58] to not simply involve common law procedural fairness: The affording to an applicant of an opportunity to attend a hearing and the duty to consider what is put at the hearing are elements of the review mandated by Div 4 of Pt 7. If a hearing is not afforded where it should be provided, then the duty to conduct a review is not fulfilled and the decision in such a case is infected by jurisdictional error. This is not simply a matter of procedural fairness at common law. A necessary condition for the decision-making power, mandated by the statute, will not have been satisfied. (Emphasis added)


case_text: The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, dismissed the application. His Honour found that the Tribunal's decision record revealed that the particular social or ethnic group to which the appellant claimed she belonged, and the related persecution alleged by the appellant, were both identified by the Tribunal. The Tribunal was under no obligation to make findings of fact: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16] . Consequently, the fact that the Tribunal did not make findings on the matters asserted by the appellant to be important did not amount to jurisdictional error. Further, whether or not the Thai Yai are persecuted in the fashion asserted by the appellant was irrelevant unless the Tribunal had accepted the applicant's personal claims to fear persecution, and to fear that persecution by reason of her Thai Yai ethnicity.


case_text: I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238. 29 The circumstances for my consideration are not dissimilar to the circumstances that arose in NALQ [2004] FCAFC 121 and the principles discussed therein (at [35]-[36]). As in that case, the failure to reschedule and hear the matter after giving the appellant the opportunity to provide material to the Tribunal, arose from the appellant's failure to provide sufficient information to the Tribunal to explain her inability to attend on the original hearing date. As I have indicated, the appellant was advised on 29 May 2007 (after the original scheduled hearing she did not attend) that she should provide any further information she wished the Tribunal to consider, including any explanation of why she did not attend the original scheduled hearing date. 30 In these circumstances, the focus must be upon the material the Tribunal had before it in deciding on 31 May 2007 whether to proceed under s 426A or to reschedule: see, eg, NALQ [2004] FCAFC 121 , [35]-[36] and SZBQG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1858 , [13]-[15].


case_text: In my view, the Tribunal's decision to proceed under s 426A was not capricious, nor did it fail to take into account the material submitted to it: see NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 ; (2006) 152 FCR 592 , 598 at [21]. I do not regard it as incumbent on the Tribunal in this case to inform the appellant of the reason for not rescheduling the hearing, or allowing the appellant the opportunity to present argument on whether the Tribunal should proceed under s 426A , prior to the Tribunal so deciding. 36 The Tribunal, having been apprised of the appellant's position on the original scheduled hearing day, considered a rescheduling, but ultimately decided to proceed with its decision. It did so in light of its rejection of the appellant's explanation of her inability to attend on the original scheduled hearing day and due to the fact that no further information was forthcoming. Nothing in the Tribunal's approach indicated that it failed to provide the appellant with an opportunity to be heard, once apprised of the situation. The appellant was given all the opportunity to be heard as is required by the Act, and the appellant received (if at all required) a real and meaningful invitation prior to the operative decision made by the Tribunal on 31 May 2007.


case_text: In these circumstances, the focus must be upon the material the Tribunal had before it in deciding on 31 May 2007 whether to proceed under s 426A or to reschedule: see, eg, NALQ [2004] FCAFC 121 , [35]-[36] and SZBQG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1858 , [13]-[15].


case_title: SZGWN v Minister for Immigration and Citizenship [2008] FCA 238


case_text: Recently, Gray J (with whom Gyles J agreed) in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 confirmed that, despite the codification of procedural fairness rules by virtue of s 422B of the Act, the process rights contained in Div 4 (which include s 425 of the Act) remain important to the exercise of the Tribunal's substantive powers. His Honour said at [5]: Section 425 , like other provisions found in Div 4 of Pt VII , represents Parliament's expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness. If this proposition were ever doubted, it is now confirmed by the presence of s 422B , enacted subsequently to most of the other provisions in Div 4. Like the rules of procedural fairness in other contexts, the rights given to an applicant by Div 4 are rights relating to the process by which decisions are made, rather than to the substantive content of those decisions. To say this, however, is not to diminish the importance of those rights. It has long been recognised that a statutory power, the exercise of which may affect adversely a person's interests, is impliedly subject to a requirement that the decision-maker afford procedural fairness to that person. The fact that, in the context of the Tribunal's task of reviewing decisions to refuse protection visas, Parliament has chosen to make the exercise of the Tribunal's substantive powers depend expressly upon the process rights contained in Div 4, and to spell out for that purpose what constitutes procedural fairness, does not diminish the importance of those process rights. Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1) , will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [37] .


case_title: SZJZY v Minister for Immigration and Citizenship [2008] FCA 280


case_text: Assuming there to be an evidentiary onus on the appellant to prove the reason for the non-attendance, I do not accept that this could only be proved before the Federal Magistrate by the provision of medical evidence to the Court. I do not read the comments of Gilmour J in SZLTI v Minister for Immigration and Citizenship [2008] FCA 1274 at [18] and SZMBU v Minister for Immigration and Citizenship [2008] FCA 1290 at [20] as standing for any contrary proposition.


case_title: SZMBU v Minister for Immigration and Citizenship [2008] FCA 1290


case_outcome: referred to

case_text: The test to be applied for an extension of time within which to appeal was discussed in Jess v Scott (1986) 12 FCR 187 at 195, and, in a different legislative context, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. I refer also to Parker v The Queen [2002] FCAFC 133. In Hunter Valley Developments Pty Ltd v Cohen , Wilcox J identified six relevant matters at 348-9. I have had regard to those matters. It must be said immediately the period of delay in this case is very short and, subject to what I am about to say, no injustice will be occasioned to the first respondent if an extension of time is granted. It is not easy to understand the applicant's explanation for the delay but in view of the language difficulties I am not prepared to say that his explanation is an unsatisfactory one. In those circumstances, it will often be appropriate to extend time. However, the matter which is fatal to the application is the fact that the applicant has been unable to identify any reasonable prospect of success in the appeal: Jeffers v The Queen [1993] HCA 11 ; (1993) 67 ALJR 288.


case_title: Jess v Scott (1986) 12 FCR 187


case_title: Parker v The Queen [2002] FCAFC 133


case_title: Jeffers v The Queen [1993] HCA 11 ; (1993) 67 ALJR 288


case_text: Wilcox J revisited his earlier comments in Prasad in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 and said: "It will be a relatively rare case in which a statutory decision is vitiated because of a decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored".


case_text: The observations of Black CJ in Randhawa (with whom Whitlam J agreed), reinforced by those of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 at [19] , establish that an applicant must establish that he or she cannot reasonably be expected to relocate to another area of their country of nationality. Yet the difficulties faced by an applicant in demonstrating that there is no other area to which they can reasonably be expected to relocate are often formidable. There are at least two main sources of difficulty. Firstly, the issue of relocation is almost always raised by the Tribunal, not the applicant, and raised at the hearing. The significance of this is particularly acute in cases where the applicant is not represented before the Tribunal, although that is not the present case. Secondly, the issue is necessarily speculative. This second issue raises the importance of the Tribunal properly evaluating what the asylum seeker says about relocating. This issue requires consideration of not only whether a safe haven exists in another part of the country. Proper consideration must also be given to the issue of relocation as a practical matter, by considering whether it would be reasonable to expect the person to relocate in view of all the "practical realities" facing that person.


case_outcome: discussed

case_text: The appellants relied on the comments of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. Wilcox J determined that in refusing to grant permanent residency to the applicant, the Minister had failed to take into account relevant considerations, which was a sufficient ground for the decision to be set aside. His Honour considered whether the decision was "so unreasonable that no reasonable person could make it". His Honour said (at 170): "But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to be to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information". (Emphasis added) 38 However, in Prasad , Wilcox J did not apply the principle to the facts because "little new material emerged at the hearing" (at 176). His Honour also noted that it was not strictly necessary for the point to be decided. 39 Wilcox J revisited his earlier comments in Prasad in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 and said: "It will be a relatively rare case in which a statutory decision is vitiated because of a decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored". 40 However the alleged jurisdictional error is that the Tribunal should have accessed the 2002 and 2005 documents, but did not. In Prasad , Wilcox J spoke of circumstances where it was obvious that material was readily available which was centrally relevant. But his Honour's observations concerned a challenge to a decision by reference to s 5(1)(e) and s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), namely on the basis that the decision involved the improper exercise of a power because the decision was so unreasonable that no reasonable person could have so exercised the power. Importing the observations of Wilcox J (quoted at [37] above) into a case such as the present, it would be necessary to determine to whom it was obvious that material was readily available. Is that an assessment made after the event by reference to facts proved in the judicial review proceedings (facts such as the Tribunal had the 2003 and 2005) but without proof that the Tribunal member knew of the documents? Or does it additionally require proof that the Tribunal member was aware that the documents were held by the Tribunal or at least knew that it was likely that such documents were held by the Tribunal? The answer is suggested by Wilcox J who referred, before the quoted passage, to circumstances where the decision maker unreasonably fails to ascertain relevant facts which he or she knew to be readily available to him or her (at 169.9). In the present case one would have thought it would be necessary to demonstrate that the Tribunal member knew of the documents existence or, perhaps, ought to have known that it was likely the documents existed and were readily available. The evidence in this case would not support a finding to that effect even inferentially. In my opinion, the point sought to be raised by the appellant about the 2002 and 2005 documents has insufficient prospects of success to permit it to be raised in this appeal. Consequently I refuse the appellant leave to amend the notice of appeal to add this ground.


case_text: In relation to the fifth ground, his Honour found that the Tribunal had taken into account the relevant factors and correctly applied the test in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (" Randhawa "). 20 In addressing the final ground, the Federal Magistrate found that the Tribunal had considered the materials presented to it by the appellant. His Honour regarded the appellant's claim that his feeling about the farm had been ignored as an attempt to challenge the factual findings, and found that the Tribunal had considered this aspect of the evidence. His Honour dismissed the application. 21 The notice of appeal filed 30 October 2006 identified the following three grounds of appeal: 1. His Honour erred as the Tribunal failed to take into all relevant material including United Nations High Commissioner for Refugees ("UNHCR") reports on internal relocation in Colombia; 2. His Honour erred at [40] because the principles of the Convention of the Rights of the Child have been incorporated into Australia law through case law; 3. His Honour erred in finding that the Tribunal did consider the situation in Colombia as only one extract of country information it relied on related to internal relocation. 22 Before the first hearing date of 5 March 2007, the appellant filed written submissions attaching a proposed amended notice of appeal identifying one ground. That ground was: "The Federal Magistrate erred in his finding at [46] that the Tribunal correctly applied the test in Randhawa that it was reasonable for the applicants to relocate within Colombia PARTICULARS a. The Tribunal failed, or failed adequately to determine whether an appropriate level of protection existed in any other part of Colombia. b. Lead Tribunal failed to have regard, or failed to have appropriate regard to the applicants' personal circumstances and the practical realities in the event of such relocation" 23 I will refer to this as the Randhawa ground. The Minister's had also filed written submissions in relation to the proposed amended notice of appeal. However the hearing was adjourned to allow the appellant to file and serve a proposed further amended notice of appeal raising a further ground and any evidence in support, and for both parties to provide submissions. Counsel for the appellant indicated that the further ground concerned the Tribunal's failure to access a document published by the United Nations High Commission on Refugees dated September 2002. Counsel for the Minister indicated that an amendment to raise the new ground would be opposed. Counsel for the appellant also made oral submissions on the Randhawa ground. 24 After the first hearing, the appellant served on the Tribunal a notice to admit facts. The notice required the Tribunal to admit, for the purpose of these proceedings, that on 4 December 2005, being the day before the Tribunal decision was made, the Tribunal held a document entitled "'International protection considerations regarding Columbian asylum seekers and refugees" from the UNHCR, Geneva, September 2002 and later revised in September 2005. The appellant also served on the Tribunal a notice to produce dated 6 March 2007, requiring the Tribunal to produce a catalogue of all the material held by the Tribunal relating to Colombia. 25 The Tribunal responded in a letter dated 20 March 2007 from its solicitors. It stated that the notice to produce was defective because it required production before the day of the final hearing, contrary to O 33 Rule 12 of the Federal Court Rules . It stated also that, in any event, the catalogue sought was not relevant to any issue in dispute, and that the Tribunal did not hold any such document. It enclosed a notice to dispute facts, by which the Tribunal disputed that it held the held the document identified in the notice to admit facts. It admitted that it held the following two documents: 1. A document entitled "International protection considerations regarding Colombian asylum-seekers and refugees", UNHCR, Geneva, September 2002 ("the 2002 document"); 2. A document entitled "International protection considerations regarding Colombian asylum-seekers and refugees", UNHCR, Geneva, March 2005 ("the 2005 document"). 29 The proposed further amended notice of appeal contained two grounds. The first was the Randhawa ground. The second ground was that the decision of the Tribunal was void for jurisdictional error by reason of unreasonableness and constructive failure to exercise jurisdiction. This ground was not raised before the Federal Magistrates Court. The claim in substance is that the Tribunal fell into jurisdictional error by failing to have regard to particular country information relevant to the question of the reasonableness of relocation in Colombia. That information was the 2002 document and the 2005 document. The appellants contended that those documents were "readily available" to the presiding member of the Tribunal and were "centrally relevant" to the decision to be made. The Tribunal's failure to obtain and have regard to the documents was said to have had the result that the Tribunal exercised its power in an unreasonable manner and constructively failed to exercise its jurisdiction according to law. 30 In opposing the grant of leave to file the further amended notice of appeal, the Minister relied on the lack of a reasonable prospect of success of the ground, the lack of an acceptable explanation as to why it had not been raised below, and prejudice if the amendment was allowed. 31 The 2002 document and the 2005 document were annexed to an affidavit of the appellant's solicitor, Michaela Byers, sworn 16 April 2007. The Minister did not oppose the affidavit and annexures being admitted into evidence for the purpose of determining the application for leave to amend. However, if leave was granted, the Minister opposed the admission of the affidavit into evidence on the ground that the appellant has failed to satisfy the requirements for adducing further evidence on appeal. In particular, it was submitted that no explanation had been provided as to why the fresh evidence could not, with reasonable diligence, have been adduced at first instance. 41 I turn now to consider the Randhawa ground. While it received only limited attention by counsel for the parties, particular (b) to that ground appears to me to be of some importance. In Randhawa, the Full Court considered the appropriate test to be applied regarding the question of whether an applicant can be reasonably expected to relocate to another area in their country of nationality. The relevant principles established by the Full Court in that case appear in the judgment of Black CJ at 442-443: "This further question, [whether the appellant could reasonably be expected to relocate to another area] is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person . In the context of refugee law, the practical realities facing a person who claims to be a refugee must be carefully considered . Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an application for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal Ex parte Jonah [1985] Imm. A.R .7. Professor Hathaway, op. cit. at 34, expresses the position thus: "[The internal protection principle] should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised." [Emphasis in original text] If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded... ...Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration... In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider..." 42 The observations of Black CJ in Randhawa (with whom Whitlam J agreed), reinforced by those of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 at [19] , establish that an applicant must establish that he or she cannot reasonably be expected to relocate to another area of their country of nationality. Yet the difficulties faced by an applicant in demonstrating that there is no other area to which they can reasonably be expected to relocate are often formidable. There are at least two main sources of difficulty. Firstly, the issue of relocation is almost always raised by the Tribunal, not the applicant, and raised at the hearing. The significance of this is particularly acute in cases where the applicant is not represented before the Tribunal, although that is not the present case. Secondly, the issue is necessarily speculative. This second issue raises the importance of the Tribunal properly evaluating what the asylum seeker says about relocating. This issue requires consideration of not only whether a safe haven exists in another part of the country. Proper consideration must also be given to the issue of relocation as a practical matter, by considering whether it would be reasonable to expect the person to relocate in view of all the "practical realities" facing that person. 52 On one view, the Tribunal's conclusion that it "did not accept the [appellant's] claim in this regard" was no more than a finding of fact. That was the approach of the Federal Magistrate. But in substance, it was significantly more. It was not a finding about past events but a conclusion that it would be reasonable to expect the appellant to relocate within Colombia without given any real consideration to the specific issue he had raised. An assessment of whether it was reasonable in the circumstances to expect the appellant to relocate could not be made by merely pointing to the fact that the appellant had not been on the farm for some years because he is in Australia and had not been doing farm work whilst in Australia. The test propounded by Black CJ in Randhawa requires that the evaluation be proper, realistic and fair and all the circumstances be taken into account. In my opinion, the Tribunal misunderstood the content of the principle propounded in Randhawa , did not apply it and thereby fell into jurisdictional error. 53 The appeal should be allowed with costs, the Tribunal's decision set aside and the matter remitted to the Tribunal. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 30 August 2007 Counsel for the Appellant: Mr I Archibald Solicitor for the Appellant: Michaela Byers, Solicitor Counsel for the Respondent: Ms T Wong Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 March 2007; 17 May 2007 Date of Judgment: 30 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1347.html